Kirkup v. Kirkup

279 A.D. 803 | N.Y. App. Div. | 1952

The proof was insufficient to warrant the jury in finding that plaintiff Priscilla Kirkup was other than a social visitor and as such a licensee. (Roth v. Prudential Life Ins. Co., 266 App. Div. 872; Sheingold v. Behrens, 275 App. Div. 686.) This plaintiff testified that she entered the home only at the instance of a grandson in order to visit her son, defendant Thomas Kirkup. The proof does not serve to show any trap, in that the alleged rotted support is not shown to have been in that condition as of the time of the accident. The parties appear to have been unappreciative of the issues involved and there is no proof as to the nature of the dwelling. (Cf. Oliver v. Tenerello, 271 App. Div. 983.) Carswell, Acting P. J., Johnston, Adel, Wenzel and MaeCrate, JJ., concur.