132 N.Y.S. 273 | N.Y. App. Term. | 1911
The action is brought to recover for personal injuries sustained by the plaintiff through the fall of a door which formed part of the covering of the entrance from the sidewalk to the cellar of certain premises in the borough of Manhattan, Rew York city. She joined as defendants the owner of the building and the tenant of the cellar and recovered judgment against both.
It appears that the tenant, having occasion to go into the cellar, opened the two iron doors which formed the cover to the stairway and left them standing upright but hooked together by an iron bar. While the plain-tiff was standing on the sidewalk beside the cellar entrance, both doors fell
I do not think the contention sound. There was nothing the matter with the doors, so long ns they remained closed. When and how they should be opened, and whether when opened they should be left upright or laid back flat, and if upright how they should be guarded, were matters entirely within the control .of the tenant. In the present' case, he chose to leave them standing upright and insecurely fastened, and the injury is chargeable solely to his negligence. Opper v. Hellinger, 116 App. Div. 261.
The judgment, as against the defendant King, should be reversed, with costs; and judgment directed dismissing the complaint, as against him, upon the merits, with costs, since the record shows that no. judgment could properly be taken against him upon a new trial.
Lehman and Pendleton, JJ., concur.
Judgment as against defendant King-reversed, with costs, and judgment directed dismissing the complaint against him, with costs'.
