Courtney v. Abro Hardware Corp.

• Decision Date: 28 June 1955
• Citation: 142 N.Y.S.2d 790,286 A.D. 261
• Parties: . Courtney, deceased, Plaintiff-Appellant, v. ABRO HARDWARE CORP., Defendant-Respondent, and Gilbert Taylor, as Grand Knight of St. Joseph's Council, Knights of Columbus, Defendant. Supreme, Court, Appellate Division, First Department
• Court: New York Supreme Court — Appellate Division

Page 790

142 N.Y.S.2d 790

286 A.D. 261

Lillian COURTNEY, as Administratrix of the Goods, Chattels and Credits which were of Francis A. Courtney deceased, Plaintiff-Appellant, v. ABRO HARDWARE CORP., Defendant-Respondent, and Gilbert Taylor, as Grand Knight of St. Joseph's Council Knights of Columbus, Defendant.

Supreme, Court, Appellate Division, First Department.

June 28, 1955.

Joseph Kane, New York City, for appellant.

Frank J. Horan, New York City, of counsel (Phillips, Ahearn & Bivin, New York City), for respondent.

Before COHN, J. P., and CALLAHAN, BREITEL, BOTEIN, and RABIN, JJ.

PER CURIAM.

On November 23, 1946, the deceased, Francis A. Courtney, fell while descending a stairway in the premises 521-29 W. 207th Street, Borough of Manhattan, New York City. He was rendered unconscious, and died the following day.

The premises are a two-story building. The first floor is occupied by stores, and the second floor consists of a meeting room or hall, approximately 60 X 100 feet, which was leased by the defendant-respondent to St. Joseph's Council, Knights of Columbus, for a 'meeting and club room and for conducting its social activities'. The deceased was attending a wedding held in the hall, which had been rented out by the Council for that purpose on the day of the accident.

One of the elements of negligence asserted by the plaintiff was the failure to supply handrails as required by statute. If the premises was a public building, the stairway was required to have handrails on both walls. In fact, there was only one handrail on the wall to the left in descending the stairs. The deceased's wife had her hand on that rail, and he had his left arm under his wife's right arm. The stairway was about four feet wide.

The trial court found that there was no defect in any steps, and noted that as the decedent fell he 'was propelled forward with his arms outstretched, it was physically impossible for him to have grabbed a handrail even if one had been there.' We think that this overlooks the fact that, if a handrail had been furnished, the decedent might have held on to it as he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, if required by law, would seem to be a proximate cause of the accident. See Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814; Davidoff v. Cohen, 136 Misc. 404, 241 N.Y.S. 436. However, the necessity for the rail depends upon whether the premises was a public building within the applicable provisions of law.

The evidence disclosed that the hall of the Council was a lodge room or place in which persons were congregating for recreational purposes. At the time of the accident, therefore, the premises was a public building within the meaning of the Administrative Code of the City of New York, § C26-235.0, and handrails were required on both sides of the exit stairs, § C26-292.0(1). The law was the same in this respect in 1921, when the building was erected, and during the intervening years, see N.Y.City Code of Ordinances, Building Code, ch. 5, art. 4, § 70, subd. 2, and ch. 5, art. 8, § 153, subd. 6.

We hold that the absence of the hand-rail was a proximate cause of the fatal injury to plaintiff's intestate. Martin v. Herzog, supra; Davidoff v. Cohen, supra. A handrail is designed to act 'as a protection against slipping and falling down the stairs,' Cahill v. Kleinberg, 233 N.Y. 255, 259, 135 N.E. 323, 324; see, also, De Casiano v. Morgan, 308 N.Y. 526, 127 N.E.2d 321.

We have examined the record concerning control of the premises, including the stairway, and find that there is ample evidence that the defendant-respondent was legally in control.

Accordingly, we award the plaintiff the sum of $15,511.35 as damages on the first cause of action and the sum of $500 on the second cause of action.

The judgment and order appealed from are reversed, with costs to the appellant, and judgment is directed to be entered in favor of plaintiff in accordance with this opinion.

All concur except COHN, J. P., and BREITEL, J., who dissent and vote to affirm.

Judgment and order reversed with costs to the appellant, and judgment is directed to be entered in favor of the plaintiff in accordance with the opinion herein. Settle order on notice.

BREITEL, Justice (dissenting).

Plaintiff and her deceased husband attended a wedding on the second floor of a two-story building from 10:00 p. m. until midnight. Liquor and beer were served but, according to plaintiff, deceased only partook of 'about two' beers. When leaving, as they were walking arm-in-arm down a four-foot-wide stairway, deceased tripped on the top three or four steps and was propelled forward to the bottom of the stairway, where he was mortally injured. As he tripped and fell, according to plaintiff, deceased's arms were outstretched before him and he tried to grasp something but there was nothing there. The stairway had a hand-rail on plaintiff's side but none on the deceased's side.

In considering deceased's activities and participation in the wedding festivities, he was no casual guest. He had, in fact, rented the hall for the wedding on behalf of his friend, who was getting married.

It is not sufficient that if there had been a second handrail deceased 'might have' held onto it as he descended the stairs and thus could have avoided falling. There is no evidence as to what caused decedent to trip or fall. He was holding the arm of plaintiff, his wife, but she provides no information as to what caused the fall. There is nothing in the case to indicate that the deceased could not have supported himself by...