Donohue v. Erie County Sav. Bank
| Decision Date | 06 March 1941 |
| Citation | 285 N.Y. 24,32 N.E.2d 777 |
| Parties | DONOHUE v. ERIE COUNTY SAV. BANK (two cases). |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Actions by John Donohue, by Myles Donohue, his guardian ad litem, and by Myles Donohue, against the Erie County Savings Bank, for injuries sustained when John Donohue fell into a defectively covered pit on premises owned by the defendant. From judgments of the Appellate Division, 258 App.Div. 1, 15 N.Y.S.2d 689, reversing on the law judgments of the Trial Term and dismissing the complaints, the plaintiffs appeal.
Judgments of the Appellate Division reversed and judgments of the Trial Term affirmed. Harold Horowitz, of Buffalo, for appellants.
Joseph A. Marion, of Buffalo, for respondent.
The infant plaintiff, a boy of eight, fell into a defectively covered pit upon premises owned by the defendant and was hurt. In this action to recover for his injuries a judgment in his favor has been reversed and his complaint dismissed on the law. The reversal was put wholly on the ground that there is ‘not a scintilla of evidence to support a finding that the boy was an invitee or anything more than a bare licensee.’ 258 App.Div. 1, 4, 15 N.Y.S.2d 689, 692.
Defendant's premises are a tenement house in which are twelve or more apartments. At the time he was hurt, the infant plaintiff was one of a number of boys who were playing together in the yard at the rear of this property. Some of the boys lived in the defendant's apartment house. The boy plaintiff and the others lived in contiguous properties. All the boys had been wont to play day by day throughout the connecting yards of their homes.
The boys who lived in the defendant's apartment house were witnesses for the infant plaintiff. One gave this testimony:
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Respecting the occasion in issue, the same boy testified in this fashion:
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There was also proof that the defendant previously knew that the boys had played their games upon its premises.
The jury were to consider not merely the facts directly sworn to by the witnesses but also the facts that were fairly and reasonably to be inferred therefrom. On a scanning of the evidence in that way, the jurors may have reckoned that at the time the infant plaintiff was hurt he was upon the defendant's property at the implied invitation of his playmates who made their homes there. In that view, he was not a bare licensee of the defendant. Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26...
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...v. Goldberg, 288 Mass. 79, 192 N.E. 513; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970; Donohue v. Erie County Savings Bank, 285 N.Y. 24, 32 N.E.2d 777.' (219 F.2d at page 255). Courts may take judicial notice of facts of common knowledge relating to the usual method of......
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Berdieff v. Argule
...of the landlord; for this reason a licensee or social visitor of a tenant is, as to the landlord, an invitee (Donohue v. Erie County Savings Bank, 285 N.Y. 24, 32 N.E.2d 777; Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970; Parnell v. Holland Furnace Co., 234 App.Div. 567......
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Bollinger v. Gotham Garage Co., 245.
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