| N.Y. App. Div. | Jun 18, 1945
Action in negligence against the landlords of a one-family house to recover for personal injuries suffered by the infant plaintiff, daughter of the tenant, when she fell from the higher of two wooden steps located between the front porch and the ground; and by the infant plaintiff’s mother for expenses and loss of services. The steps were voluntarily constructed by appellants in 1938. The injured plaintiff used the steps once or twice daily for five years prior to the accident. The claimed defect is in the construction of the steps. On one step the tread was eleven inches deep and on the other it was twelve inches. The heights of the three risers were respectively seven inches, eight and a quarter inches, and six inches. The theory of the action is that the appellants, although volunteers, made a negligent construction. Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. The proof fails'to establish actionable negligence in the construction, or causal connection between the construction and the infant plaintiff’s fall. (Miller v. Noyes, 268 A.D. 797" date_filed="1944-06-26" court="N.Y. App. Div." case_name="Kristiansen v. Wagner's Steel Erectors, Inc.">268 App. Div. 797, affd. 294 N.Y. 755" date_filed="1945-04-12" court="NY" case_name="Miller v. Noyes">294 N. Y. 755; Hines v. Cielo, 260 A.D. 878" date_filed="1940-10-21" court="N.Y. App. Div." case_name="Hines v. Cielo">260 App. Div. 878, affd. 285 N.Y. 786" date_filed="1941-05-22" court="NY" case_name="Hines v. Cielo">285 N. Y. 786.) The instruction to the jury, to the effect that plaintiffs could recover upon the landlords’ gratuitous promise to correct the condition and the failure of the latter to do so, was erroneous. Appeal from resettled order denying defendants’ motion to dismiss the complaint and for other relief, dismissed, without costs. Hagarty, Acting P. J., Johnston, Adel, Lewis and Aldrich, JJ., concur.