Kampinsky v. Hallo

23 N.Y.S. 114 | City of New York Municipal Court | 1893

FITZSÍMOHS, J.

Conceding that the contention of appellant is correct,—that the trial justice was wrong in compelling her to elect upon which statement in her complaint she relied to support the action brought, and that the complaint should be considered as a whole,—yet the ruling of trial justice dismissing the complaint was correct. Each one of the three statements contained in the complaint specifically alleges that she was well aware of the dangerous and defective condition of the demised premises, and, notwithstanding the possession by her of that knowledge, she moved into and continued to occupy said premises until the time when she was injured by the fall of the ceiling. It is therefore very apparent that she was guilty of contributory negligence; and, as that fact appeared upon the face of the complaint, the trial justice was right in dismissing the same.