256 A.D. 992 | N.Y. App. Div. | 1939
Action to recover damages for injuries sustained in an elevator accident. Judgment affirmed, with costs. No opinion. Lazansky, P. J., Carswell and Johnston, JJ., concur; Adel, J., with whom Taylor, J., concurs, dissents and votes to reverse and grant a new trial, with the following memorandum: Plaintiff’s sister was a patient in the hospital, and plaintiff had gone there to carry something to her. She was on the way to the first floor, her errand having been performed, when the elevator in which she was riding stopped at that floor and let off some passengers, then started up again without warning. Plaintiff had one foot out of the car and was so placed that on resumption of motion by the car she was caused to fall, sustaining injuries. Under these circumstances, the defendant, at the time being engaged in a governmental function, is not liable. (Nichitta v. City of New York, 223 App. Div. 428; affd., 250 N. Y. 530.) The fact that the city exacted a fee from some patients, though not from all, does not in any degree impair its freedom