176 A.D. 777 | N.Y. App. Div. | 1917
This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff, who was an infant about three years of age, through the negligence of. the defendant.
The defendant was the owner of an apartment house, No. 203 West Sixty-sixth street, borough of Manhattan, New York. From the main entrance to the building four steps descended to the sidewalk. The basement of the building was occupied by a tenant, and access thereto was by means of a stairway descending from the sidewalk parallel with the front line of the building. There was a railing inclosing this areaway with the exception that there was an opening without a gate or other barrier from a platform at the top of the stairway onto the sidewalk at right angles to the. building. This platform consisted of three planks running at right angles to the building, and five or six inches below the level of the sidewalk adjacent thereto. In the middle plank of this platform and at the outer end of the plank there was a hole, according to the testimony, from six inches in diameter to nine by fourteen inches in dimension.
The infant plaintiff resided with his parents in a rear apartment on the ground floor of the apartment house. Access to the apartment in which he resided was had by the main entrance and not by the stairway descending into the base
The evidence shows that the janitress of the building employed by the defendant customarily swept this platform and descending stairway, and there is evidence tending to show that the hole had existed for about a year. If there was any duty on the part of the owner to the plaintiff with respect to this condition of the platform the evidence would have warranted a finding that the defendant had actual or constructive notice that the hole existed for a sufficient length of time to require him to remedy the defect.
There is no express evidence with respect to whether or not the front line of the building was on the outer line of the owner’s property or with respect to any permit or license to the owner from the municipal authorities by law, ordinances or otherwise to maintain the stairway and platform in the public street, if the same was constructed within the lines of the street.
The learned counsel for the respondent attempts to sustain the judgment upon the theory that the platform and stairway were on the private property of the defendant and that the plaintiff was either a trespasser or at most a licensee, and that the defendant owed to him no duty to maintain the platform in repair, under the authorities which are to the effect that the owner of private property owes no duty to trespassers or mere licensees to maintain his premises in a reasonably safe condition. (Sterger v. Van Sicklen, 132 N. Y. 499; Collins v. Decker, 120 App. Div. 645; Rubin v. Maas, 148 N. Y. Supp. 179.)
As I view the facts it is unnecessary to decide whether that contention would be sound if the platform and stairway were on the private property of the defendant; but I think it is fairly to be inferred that the platform and stairway were within the public street. It appears from the exhibits in the
I am, therefore, of the opinion that the court erred in dismissing the complaint, and that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Dowling and Smith, JJ., concurred; Clarke, P. J., and Scott, J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.