McGee v. Adams Paper and Twine Co.

• Decision Date: 29 November 1967
• Citation: 26 A.D.2d 186,286 N.Y.S.2d 274,20 N.Y.2d 921,233 N.E.2d 289
• Parties: , 233 N.E.2d 289 Ann McGEE, as Administratrix, etc., et al., etc., Appellants, v. The ADAMS PAPER AND TWINE CO., Inc., et al., etc., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 274

286 N.Y.S.2d 274

20 N.Y.2d 921, 233 N.E.2d 289

Ann McGEE, as Administratrix, etc., et al., etc., Appellants, v. The ADAMS PAPER AND TWINE CO., Inc., et al., etc., Respondents.

Court of Appeals of New York.

Nov. 29, 1967.

Appeal from Supreme Court, Appellate Division, First Department, 26 A.D.2d 186, 271 N.Y.S.2d 698.

Moe Levine and Aaron J. Broder, New York City, for plaintiffs-appellants McGee and Devine.

Bernstein, Weiss, Tomson, Hammer & Parter, New York City, for plaintiff-appellant Tracy.

Gregory Peck, New York City, for plaintiff-appellant Brier (Irving A. Thua, New York City, of counsel).

James J. Egan, New York City (Morris Pottish, Irving A. Silverman and James J. Egan, Jr., New York City, of counsel), for appellant Schmid.

Dougherty, Ryan, Mahoney & Pellegrino, New York City (Lawrence J. Mahoney and Robert J. Giuffra, New York City, of counsel), for appellant Brusati.

Edward F. Sweeney, New York City (Robert E. Curran and Kevin D. Moloney, New York City, on the brief), for defendants-respondents.

J. Lee Rankin, New York City (Stanley Buchsbaum and William A. Marks, New York City, of counsel), for municipal respondents.

Actions were brought against The Adams Paper and Twine Co., Inc., (Adams), and defendants Elkins doing business as Elkins Company, the City of New York, The Fire Commissioner of the City of New York, and the Commissioner of Buildings of the City of New York for deaths of Bernard Blumenthal and William Schmid, firemen employed by the City of New York, and Michael McGee, James Devine, Michael Tracy and Louis Brusati, fire patrolmen employed by the New York Board of Fire Underwriters, all of whom died in the collapse during a fire of a six-story building owned by defendant Adams and leased to defendants Elkins, who were engaged in the business of processing and selling paper products.

There was evidence that the fire which occurred on February 14, 1958, started on the fifth floor of the building, and that, at the time the building collapsed, Blumenthal and Schmid were attempting to leave the roof of the building after having made an unsuccessful effort to open a roof scuttle in order to ventilate the building, and that, at the time of the collapse, McGee, Devine, Tracy, and Brusati were spreading tarpaulins and taking other measures to protect property in the building.

The alleged liability on the part of defendants Adams and Elkins was based on the alleged careless smoking by employees, the installation and maintenance of an allegedly unsafe recreation room on the fifth floor, alleged overloading of the fifth floor by storage thereon of an excessive amount of paper, failure of those defendants to give warning of the hazard which arose by reason of the absorbent...