Carbone v. Mackchil Realty Corp.

• Decision Date: 16 January 1947
• Citation: 296 N.Y. 154,71 N.E.2d 447
• Parties: CARBONE et al. v. MACKCHIL REALTY CORPORATION et al. (Action No. 1). MUZIO et al. v. SAME (Action No. 2). FESTA et al. v. SAME (Action No. 3).
• Court: New York Court of Appeals Court of Appeals

296 N.Y. 154

71 N.E.2d 447

CARBONE et al.

v.MACKCHIL REALTY CORPORATION et al. (Action No. 1).

MUZIO et al.

v.SAME (Action No. 2).

FESTA et al.

v.SAME (Action No. 3).

Court of Appeals of New York.

Jan. 16, 1947.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by William Carbone. Jr., an infant, by William Carbone, Sr., his guardian ad litem, and William Carbone, Sr., against Mackchil Realty Corporation and another, for injuries sustained by infant plaintiff and for loss of services and expenses, consolidated with similar actions by Joseph Muzio, an infant, by Michael Muzio, his guardian ad litem, and Michael Muzio and by Silvesta Festa, Jr., an infant, by Silvesta Festa, Sr., his guardian ad litem, and Silvesta Festa, Sr., against same defendants. From a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department, 270 App.Div. 778, 59 N.Y.S.2d 529, entered January 19, 1946, affirming by divided court a judgment of the Supreme Court in favor of plaintiffs entered in Saratoga County, upon a verdict rendered at a Trial Term, defendants appeal.

Reversed and complaints dismissed.

DESMOND, J., dissenting.

Donald Gallagher, of Albany, for appellants.

Joseph A. Romano, of Ballston Spa, and Frank A. Tate, of Mechanicville, for respondents.

LEWIS, Judge.

The infant plaintiffs in these three actions suffered personal injuries while climbing upon or playing near the foundation walls of a demolished building which stood on premises owned by the defendant Mackchil Realty Corporation and leased by the defendant Kay Dunchill, Inc. For injuries suffered by each infant when one of the walls collapsed and for the cost of incidental care and loss of services resulting to his parent, the plaintiffs in each action were awarded judgments at Trial Term against both defendants. Those judgments have been affirmed at the Appellant Division, one justice dissenting.

Although counsel for the plaintiffs-respondents in their brief before us have conceded that the rule of Walsh v. Fitchburg R. Co., 145 N.Y. 301, 39 N.E. 1068, 27 L.R.A. 724, 45 Am.St.Rep. 615, has never been questioned in this court, they deny its application to the case now before us. We are told that the site of the foundation walls where the infant plaintiffs were injured was more of an allurment to children than was the turntable involved in the Walsh case, supra, and that the evidence adduced from plaintiffs' witnesses of actual or constructive knowledge by the defendants that after one of the walls had become undermined there were occasionswhen children were seen at play at or near the undermined wall, was sufficient in law to establish actionable negligence by the defendants and sustains the judgments we now review. Having reached a contrary conclusion as to the probative value of plaintiffs' evidence to establish actionable negligence by the defendants, we cite from the record additional facts to make clear the problem here involved:

The accident occurred in the city of Mechanicville, on premises which have been in possession of the defendants since 1937. The land comprises a corner lot bounded by Hudson Street on the west and Hill Street on the south. From its frontage on Hudson Street the defendants' land extends easterly one a level grade for about 150 feet to a point where it drops off abruptly down a steep embankment to a creek which forms part of the easterly boundary. In 1929 the defendants' predecessor in title erected a factory building on the level westerly portion of the lot facing Hudson Street. At that time there were left standing at a point northeast of the factory and about 15 feet west of the top of the easterly embankment, four foundation walls which had once supported a barn long since demolished. The foundation walls, which surrounded a 21 25 area, were not near the two public streets which bound the defendants' land but were in the rear portion of the lot 170 feet back from Hudson Street and 150 feet from Hill Street. The footings of the four foundation walls were of concrete in some places 2 feet thick surmounted by courses of brick so set as to produce a wall-thickness of 16 inches. In the process of constructing the factory building in 1929 a tile drainpipe installed to carry rain water from a portion of the factory roof was laid underground extending eastward from the factory and under the foundation walls to the embankment along the easterly bounday. At the point where the discharge end of the drainpipe emerged from the embankment it was left protruding from the slope about one foot thus permitting any water to drain down the bank to the creek below. Although at that time in 1929 the embankment was of solid earth at the point where the drainpipe protruded, the discharge of water during the years eroded the soil back from the embankment to an extent sufficient to form a gulley which in 1942 had reached and undermined one of the foundation walls. Meantime the drainpipe had broken at a point inside the walls where on occasions rain water was discharged inside the foundation.

On October 16, 1942, the three infant plaintiffs two of whom were fourteen and one of them thirteen years of age entered defendants' land in search of a place to play and found their way back to the site where the foundation walls were standing. When two of the boys had climed upon one of the walls and the third boy was about to mount it the wall collapsed causing injury to each boy for which recovery has been had in these actions. Although two of the three infant plaintiffs had never before been on the defendants' premises there was evidence that children had been seen playing at or near the site of the foundation walls. Opposed to that evidence the defendants called two employees who testified that they had repeatedly ‘chased’ children away from that part of defendants' premises which lies east of the factory building and near the site of the foundation walls. The plaintiffs also introduced evidence that defendants had knowledge prior to the accident that one of the foundation walls was undermined.

When the three infant plaintiffs came upon defendants property they were uninvited. Motivated as they were by their own curiosity, or by a desire for amusement in no way connected with business or other relations with the defendants, it cannot be said that the defendants' failure in this instance to prohibit their intrusion was in any sense an invitation. Giving to the infant plaintiffs every favorable inference which may be had from the evidence they were at most bare licensees.

The duty impressed by law upon the defendants in those circumstances has been repeatedly the subject of decision by this court: ‘Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself. * * * Toward mere trespassers or bare licensees the rule is well settled that the only duty...