Lyon v. Queensboro Corp.

232 A.D. 781 | N.Y. App. Div. | 1931

Judgment reversed upon the law and the facts and a new trial granted, costs to appellant to abide the event. We are of opinion that the questions of defendant’s negligence and plaintiff’s contributory negligence were of fact for the jury. Where the defendant operates an automatic elevator in an apartment house for the use of its tenants, it is under the duty of using reasonable care in the construction and maintenance of the elevator doors, gates and shaft. Whether or not the defendant discharged this duty was a question for the jury, as was also the question of reasonable care upon the part of this plaintiff, an infant of the age of nine years. If the defendant be otherwise liable, it is not relieved upon the theory of agency, since that relationship does not exist between it and the holder of the record title in the ordinary sense of the word. Control and management of the property were vested exclusively in the defendant. Lazansky, P. J., Young, Hagarty, Scudder and Tompkins, JJ., concur.