Leonard v. Home Owners' Loan Corp.
| Decision Date | 17 October 1947 |
| Citation | 297 N.Y. 103,75 N.E.2d 261 |
| Parties | LEONARD v. HOME OWNERS' LOAN CORPORATION et al. (two cases). |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Actions by Frances Leonard, an infant, by Harry Leonard, her guardian ad litem, and by Harry Leonard against Home Owners' Loan Corporation and others and New York Telephone Company to recover damages alleged to have been caused by nuisance. From a judgment in favor of the telephone company in action by infant plaintiff entered upon an order of the Appellate Division of the Supreme Court, 270 App.Div. 363, 785, 867,60 N.Y.S.2d 78, which reversed, on the law and facts, a judgment in favor of infant plaintiff entered upon a verdict rendered at trial term, Murray, J., presiding, and dismissed the complaint, the infant plaintiff appeals, and from judgment in favor of telephone company entered in the other action upon such order of the Appellate Division which also reversed on the law and facts an order of trial court, Murray, J., granting a motion by plaintiff to set aside a verdict of ‘no cause of action’ as against the telephone company and dismissed the complaint, Harry Leonard appeals. Evidence was submitted to the effect that in avoiding some bricks which fell from a shed situated in the city of Albany onto an alleyway as the infant plaintiff, then about seven years old, was walking therein, she tripped oved a brick frozen into the earth surface of the alley and elevated about a quarter of an inch above ground, and that she fell through an opening in the wall of the shed onto the shed floor which was below the level of the alley. There was also evidence that prior to the day of the accident defendant-respondent had installed a small cable which at one point had been passed through an opening in a wall of the shed.
Judgments affirmed.
Morris Simon, of Troy, for appellants.
Frank L. Wiswall and Carl O. Olson, both of Albany, for respondent.
In its charge the trial court instructed the jury that a verdict could not be rendered against defendant New York Telephone Company unless it was shown that the defendant ‘caused or contributed to cause’ the brick over which the infant plaintiff tripped to fall in the alleyway. No objection having been made by plaintiffs, that charge became the law of the case. Since the evidence thus rendered vital was not adduced, we have no alternative but to affirm the determination dismissing the...
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Honigsberg v. New York City Transit Authority
...verdict is irreconcilably inconsistent. Leonard v. Home Owners Loan Corp., 270 App.Div. 363, 785, 867, 60 N.Y.S.2d 78, affirmed 297 N.Y. 103, 75 N.E.2d 261. See also, Reilly v. Shapmar Realty Corp., 179 Misc. 614, 39 N.Y.S.2d 782, revised 267 App.Div. 198, 45 N.Y.S.2d 356; Zittrer v. Pitkin......
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...free from contributory negligence as a matter of law (Leonard v. Home Owners' Loan Corp., 270 App.Div. 363, 60 N.Y.S.2d 78, affd. 297 N.Y. 103, 75 N.E.2d 261; see also Reilly v. Shapmar Realty Corp., 179 Misc. 614, 39 N.Y.S.2d 782, rev. 267 App.Div. 198, 45 N.Y.S.2d 356). The negligence of ......