252 A.D. 742 | N.Y. App. Div. | 1937
Lead Opinion
Judgment affirmed, with costs. No opinion. Present — Martin, P. J., Glennon, Untermyer, Dore and Callahan, JJ.; Untermyer and Dore, JJ., dissent and vote to reverse and grant a new trial; dissenting opinion by Dore, J.
Dissenting Opinion
(dissenting). In view of the conflicting testimony as to the presence of any fence on the southerly end of the structure at the time of the accident, and in view of other surrounding circumstances as testified to by plaintiff’s witnesses, we think the court erred in holding as a matter of law that the infant plaintiff was a mere licensee. Whether such plaintiff was an invitee, licensee, or trespasser involved controverted issues of fact which should have been submitted to the jury. Accordingly the judgment should be reversed and a new trial granted, with costs to appellants to abide the event.
Untermyer, J., concurs.
