Collier v. Collins
Decision Date | 07 October 1902 |
Parties | COLLIER v. COLLINS. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Second department.
Action by Godwin S. Collier against Henry S. Collins. From an order of the appellate division (69 N. Y. Supp. 94) reversing a judgment in favor of defendant, he appeals. Reversed.
This action was brought to recover damages on account of personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. She rented the ground floor of a tenement house from him, and was authorized by his agent to use a window, which had an iron gate swinging on hinges, in order to reach the back yard. An area in the yard, directly beneath the window, and two feet lower, opened into the cellar, which had another entrance for the use of tenants generally. At the surface of the ground the area was 22 by 32 inches in size, and was covered by wooden slats fastened together, making a cover 24 by 32 inches, but without anything to prevent it from slipping into the hole if it became slightly displaced. It had no support on the side next to the house, and when exactly in position the margin of support by the ground was but two inches. On one occasion, not long before the accident, the plaintiff asked the defendant's agent to fix it, and he said that he had, and thereupon jumped upon it, declaring it was all right. It does not appear what he did to repair it, but its dimensions were not enlarged, nor further support furnished. November 7, 1898, at about half past 10 in the evening, the plaintiff went out into the yard through the window to hang up clothes, as was her custom, and, on returning, the cover over the area, as she stepped upon it, tilted into the hole, and she was injured more or less severely. The trial court dismissed the complaint, but the appellate division reversed the judgment entered accordingly, two of the justices dissenting.
J. Stewart Ross, for appellant.
John J. Leary, for respondent.
VANN, J. (after stating the facts).
At the close of the evidence for the plaintiff the defendant moved to dismiss the complaint upon the ground that no cause of action had been established against him. The motion was granted, but the plaintiff took no exception, and thus apparently acquiesced in that disposition of the case. Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437, 441,52 N. E. 650. Her motion for a new trial, made without specifying any ground therefor, so far as appears; was denied, and she excepted, but no order was entered, and no foundation laid for an appeal therefrom. Her appeal to the appellate division was from the judgment only. She made no attempt to appeal from an order, whether entered or not, denying her motion for a...
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