Paul v. Flag Fish Co.

• Decision Date: 24 November 1958
• Citation: Paul v. Flag Fish Co., 180 N.Y.S.2d 73, 7 A.D.2d 656 (N.Y. App. Div. 1958)
• Parties: Dan PAUL, Appellant, v. FLAG FISH CO., Inc., Respondent, and L & K Realty Corporation, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 73

180 N.Y.S.2d 73

7 A.D.2d 656

Dan PAUL, Appellant, v. FLAG FISH CO., Inc., Respondent, and L & K Realty Corporation, Defendant.

Supreme Court, Appellate Division, Second Department.

Nov. 24, 1958.

Daniel Ross, New York City, for appellee.

Joseph Fennelly, New York City, for defendant, respondent.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, HALLINAN and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the appeal is from a judgment dismissing the complaint as to respondent at the close of the entire case. Appellant was injured when he rescued an employee of respondent from falling through an opening on the second floor of premises maintained and controlled by respondent.

Judgment reversed and a new trial granted, with costs to appellant to abide the event.

If respondent was negligent with respect to its employee, it may be held negligent with respect to appellant, who attempted to, and did, rescue the employee. Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1. In our opinion, a jury might find that respondent was negligent in providing its employee with a rope with which he could not properly perform his assigned task of pulling the rope through a pulley.

BELDOCK, HALLINAN and KLEINFELD, JJ., concur.

WENZEL, Acting P. J., and MURPHY, J., dissent and vote to affirm, with the following memorandum:

Apart from the reasons stated by the court for its dismissal of the complaint as to respondent, everyone...