Polemenakos v. Cohn
| Decision Date | 19 July 1932 |
| Citation | 260 N.Y. 524,184 N.E. 77 |
| Parties | Peter POLEMENAKOS, Appellant, v. Julius COHN et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from a judgment, entered March 15, 1932, upon an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (234 App. Div. 563, 256 N. Y. S. 5), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff was a tenant in premises owned by defendants, consisting of stores on the ground floor and apartments and offices in the floors above, separately rented by defendants to the various occupants. The complaint alleged that the building was negligently and carelessly built and negligently used by the defendants, in that in the joint backyard there was a pit immediately next to a stairway leading into the plaintiff's premises, that the pit was improperly covered and unprotected, and that, while plaintiff was cleaning up the backyard, he stepped upon the cover of the pit, and by reason of its unsafe condition was precipitated through the stairway leading into his own place of business, sustaining the injuries complained of. The Appellate Division held that, assuming that the duty of keeping the part of the premises in question in repair rested upon the defendants, their obligation ‘stopped with making the place reasonably safe for the purposes for which it was accustomed to be used, or for any purpose for which they had reason to apprehend that it would be used,’ and that this ‘was a most unusual accident, and something the defendants were not bound to anticipate or foresee.’ The Appellate Division further held that the breaking of the cover was not the proximate cause of plaintiff's injury, that the plaintiff ‘slipped in mud, which he himself had made * * * for which the defendants were in no way responsible,’ and that the ‘plank broke because of the sudden and unexpected force placed upon it, when plaintiff's body struck it.’
George E. Phillies, of Buffalo, for appellant.
Frank Gibbons, of New York City, for respondent.
Judgment affirmed, with costs.
CROUCH, J., not sitting.
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