Mendelowitz v. Neisner

• Decision Date: 05 January 1932
• Citation: 179 N.E. 378,258 N.Y. 181
• Parties: MENDELOWITZ v. NEISNER.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 181

179 N.E. 378

MENDELOWITZ

v.NEISNER.

Court of Appeals of New York.

Jan. 5, 1932.

Action by Louis Mendelowitz, individually and as guardian ad litem for Charles Mendelowitz, against Mary Neisner. From a judgment of the Appellate Division (233 App. Div. 826, 250 N. Y. S. 972), affirming a judgment of the Trial Term entered upon a verdict directed in favor of the plaintiff, a jury being waived, the defendant appeals.

Judgment of the Appellate Division and that of the Trial Term reversed, and the complaint dismissed.

Appeal from Supreme Court, Appellate Division, First department.

F. A. W. Ireland, Emmet M. Taub, and William C. Fiest, all of New York City, for appellant.

Julius S. Berg, of New York City, for respondents.

CRANE, J.

The defendant was the owner of an apartment house, 814 East One Hundred and Sixtieth street, in the city of New York. Around the building was an alleyway below the surface of the street, reached by descending a flight of steps. The alleyway was formed by the building of the apartment house on one side and a stone retaining wall on the other. The top of this retaining wall was on a level with the street and abutted onto buildings on adjoining property. The retaining wall was capped or topped by heavy flagstones two feet or more wide forming a walk for those who occasionally used it to enter the rear of stores opening onto this walk. While the defendant owned and maintained this retaining wall, he maintained it for no such purpose and had repeatedly warned children and others away from the alley. Some distance down from the entrance to the alley was a flight of steps leading up to a platform level with the top of the retaining wall. This platform was built and maintained to receive the drop of the fire escape. Persons using the fire escape could drop the ladder onto this platform and thus proceed through the alley to the street. As this platform was on a level with the top of the retaining wall, the defendant had contructed a railing across the retaining wall and at right angles to its face so as to prevent people from passing from the platform onto the retaining wall or using the retaining wall. Children frequently played in this alley, but had been repeatedly warned by the owner to keep out, that it was no play yard, and was not to be used as such. The plaintiff in this case, a young boy nine years of age, testified that he had been told not to go in there.

One of the capstones on the retaining wall apparently was loose from lack of proper cement. On the 17th day of August, 1927, the plaintiff Charles Mendelowitz, the young boy referred to, wanted some clothespins which were on the wall. He passed from the alley up the steps onto the platform of the fire escape, climbed the fence, and proceeded along the wall, when the defective capstone gave way and he fell into the alley with the capstone on his leg. His injuries have been very severe, resulting in the loss of his leg, and he has recovered a substantial judgment against the defendant for negligence, which has been sustained by a divided court at the Appellate Division.

We are of the opinion that the judgment must be reversed and the complaint dismissed, as the defendant owed no duty to Charles which he failed to fulfill. From the evidence it is quite certain that neither the children playing in the alley nor the adults using the wall as a walk were invitees, either express or implied, of the defendant. He tried to keep them out; he put up rails for this purpose, and repeatedly warned the children, including the plaintiff. The persons using the wall were, therefore, trespassers, not invitees, and to such the defendant owed no duty to maintain this wall in a safe condition for their use as a walk. Where a person goes upon the premises of another without invitation, but simply as a bare licensee, and the owner of the property, passively, acquiesces in his coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence; for such person has taken all the risk upon himself. Such is the law as expressed in Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240, 243,97 N. E. 497, 38 L. R. A. (N. S.) 395, Ann. Cas. 1913C, 745, and Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594. Toward mere trespassers or bare licensees the rule is well settled that the only duty owing to them by the owner or occupier...