San Filippo v. American Bill Posting Co.

• Decision Date: 28 May 1907
• Citation: Filippo v. American Bill Posting Co., 188 N.Y. 514, 81 N.E. 463 (N.Y. 1907)
• Court: New York Court of Appeals Court of Appeals
• Parties: MARY SAN FILIPPO, Respondent, v. AMERICAN BILL POSTING COMPANY, Appellant.

188 N.Y. 514

81 N.E. 463

SAN FILIPPO

v.AMERICAN BILL POSTING CO.

Court of Appeals of New York.

May 28, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary San Filippo against the American Bill Posting Company.Defendant appeals from a judgment of the Appellate Division of the Supreme Court(98 N. Y. Supp. 661,112 App. Div. 395) reversing judgment for defendant and ordering judgment for plaintiff.Affirmed.Robert H. Elder, for appellant.

Henry A. Powell, for respondent.

O'BRIEN, J.

The plaintiff sustained personal injuries in consequence of the falling or blowing down of a large billboard or sign which had been placed upon the roof of a building in the city of Brooklyn.It was alleged that the defendant maintained the sign, which had been erected in a careless and unsafe manner, and that by reason of the defendant's negligence the sign fell or was blown down on or about the 5th day of November, 1902, resulting in bodily injury to the plaintiff.

At the close of the testimony given upon the trial the defendant's counsel made a motion to dismiss the complaint.The court submitted the issues of fact involved in the case to the jury and a special verdict was returned in favor of the plaintiff.Subsequently the learned trial judge set aside the verdict and dismissed the complaint, to which ruling an exception was taken.On appeal the judgment of the trial court was reversed and judgment ordered in favor of the plaintiff on the verdict.It was assumed at the trial that the case was controlled by our decision in Reynolds v. Van Beuren, 155 N. Y. 120, 49 N. E. 763,42 L. R. A. 129.The facts in that case were, we think, materially different from the facts in the case at bar.In the former case it appeared that the defendants did not own the building on which the sign had been placed nor the sign itself.They did not erect the sign and had no control over it.They had the right to place bills or advertisements upon it, but had no right to remove it or to change its location.They paid the tenant in possession of the building a compensation for the use of it, and that was the extent of their obligation or duty.This court held, upon these facts, that the defendants were not liable for the result of the accident and were not chargeable with any breach of duty in respect to the care of the sign.The tenant in possession of the building was in control of the roof and could remove the sign at pleasure, and was liable for the result of any negligence in maintaining it.The reasons given for the decision in that case are not at all applicable to the...