268 A.D. 883 | N.Y. App. Div. | 1944
Plaintiff, an employee of a contractor who had been engaged by defendant to recondition a building owned by it, was injured when he fell from a second floor porch, because of an allegedly defective condition of the porch railing, of which defendant had or should have had knowledge. The complaint was dismissed at the close of the entire case upon the authority of Larsen v. Home Owners’ Loan Corp. (266 App. Div. 1007, leave to appeal denied, 292 N. Y. 724). Judgment reversed upon the law and the facts and a new trial granted, with costs to abide the event. In our opinion, upon this record the plaintiff established a prima facie case as to defendant’s negligence, requiring its submission to the jury, and it was error to dismiss the complaint. Larsen v. Home Owners’ Loan Corp. (supra) is inapplicable. The pole there involved, unlike the house here, was not a place to work. Moreover, in that case there was no proof that defendant knew of the dangerous condition of the pole, which could have been ascertained only through expert tests; and this court held that upon the facts there existing the obligation was upon the contractor and not the owner to determine the soundness of the pole. Among those facts was the contract, similar to the one in the instant
