88 N.Y.S. 704 | N.Y. App. Div. | 1904
Two actions, one of them for the loss of the services of a son six years of age, and the other for personal injuries to such son, were tried together, resulting in a nonsuit, the plaintiffs appealing. Under such circumstances, the plaintiffs are entitled to the most favorable view of the evidence which a jury might properly have taken, and we are of opinion that the evidence was such that the case should have been submitted to the jury. The defendant was the lessee of a building located on the west side of Hicks street in the borough of Brooklyn under a ten years’ lease, with a privilege of a renewal for ten years, the lease bearing date November 9, 1892, the defendant having taken possession on June 1, 1892, Under an agreement for the execution of said lease. Defendant was under a covenant to make all inside and outside repairs, and to keep the premises in good and tenantable condition, and no question is raised that the defendant was responsible for the condition of the premises to the same degree that the owner would be in the absence of such-covenants. For the purpose of adding to the usefulness of this building an area way had been constructed in front of the building from Baltic street to the middle of the block, under the provisions, we may assume, of chapter 3, article 6, section 2 of the ordinances of the city of Brooklyn, which are in evidence,
On the evening of August 25, 1900, at about half-past eight o’clock, Edward Devine, a boy about six years of age, accompanied his mother from her home on Baltic street to Hicks street, where she had occasion to make some purchases. Mrs. Devine had a baby with her in a carriage, which she left in front of the defendant’s premises in charge of Edward, crossing the street for the purpose of
Assuming that it was a matter resting in the discretion of the court to compel the plaintiff to elect between negligence and nuisance, we are of opinion that the case did not demand this treatment, and that the request of the plaintiff to go to the jury on the question of negligence should have been granted.
The judgments appealed from should be reversed, and new trials granted, costs to abide the event.
All concurred.
Judgments reversed and new trials granted, costs to abide the event.