Schroeder v. City & County Sav. Bank of Albany

• Decision Date: 19 July 1944
• Citation: 293 N.Y. 370,57 N.E.2d 57
• Court: New York Court of Appeals Court of Appeals
• Parties: SCHROEDER v. CITY & COUNTY SAV. BANK OF ALBANY et al.

293 N.Y. 370

57 N.E.2d 57

SCHROEDER

v.CITY & COUNTY SAV. BANK OF ALBANY et al.

Court of Appeals of New York.

July 19, 1944.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Edward Schroeder against the City and County Savings Bank of Albany, M. Gerber Construction Company, Inc., and others for personal injuries. From a judgment of the Appellate Division of the Supreme Court, 267 App.Div. 206, 46 N.Y.S.2d 46, affirming by a divided court a judgment of the Supreme Court in favor of plaintiff and M. Gerber Construction Company, Inc., and others, entered upon a verdict rendered in favor of plaintiff and against City and County Savings Bank of Albany at a Trial Term (Murray, J.), and upon a dismissal by the trial court of the complaint as to M. Gerber Construction Company, Inc., and others after a verdict rendered against the latter defendants had been set aside, plaintiffs and defendants City and County Savings Bank of Albany appeal.

Affirmed in part and reversed and a new trial granted in part.

LEHMAN, C. J., can THACHER, J., dissenting.

Morris Simon, of Troy, for defendant-appellant.

Frank L. Wiswall, Carl O. Olson, and La Verne Orvis, all of Albany, for plaintiff, appellant and respondent.

John J. Conners, Jr., of Albany, for M. Gerber Construction Co., Inc., defendant-respondent.

John J. Scully, of Albany, for Benedetto Sano and others, doing business under the name of Sano-Rubin Construction Company, defendants-respondents.

CONWAY, Judge.

This is an action for personal injuries. Defendant City and County Savings Bank of Albany (hereinafter called the Bank) owned premises located at the corner of South Pearl Street and Norton Street in Albany. It leased the ground floor and basement of the premises, ‘together with right to the tenant to construct and maintain a facade along the outside of the building up to the bottom of the windows on the third floor thereof.’ The Bank agreed to make certain alterations in accordance with plans attached to the lease and the tenant agreed to construct a new front on the demised premises. The Bank engaged Sano-Rubin Construction Company (hereinafter called Sano-Rubin) to make the alterations required of it. Sano-Rubin applied for a permit to occupy one half of the sidewalk and one third of the street to the trolley tracks. That permit was granted Thereafter the Bank wrote to the tenant that it had completed its part except for the electrical work which was in turn dependent upon work to be done by the tenant and except for the painting which the tenant had instructed it to postpone. Under a written contract the defendant M. Gerber Construction Company, Inc. (hereinafter called Gerber), undertook to do certain work for the tenant. A barricade was built in front of the building on Pearl Street and on Norton Street. It was made of two by fours and some heavier pieces. It was between twenty and twenty-five feet high. On the morning of February 28th the barricade collapsed. The plaintiff was injured when the attempted at the request of the police to aid in making secure that portion of the barricade which had not then collapsed but which was swaying in the wind. While so doing, he sustained the injuries for which this action has been brought.

The trial court correctly charged the jury after the defendants had rested at the close of plaintiff's case without putting in any evidence, that the doctrine of res ipsa loquitur was applicabile. Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36, 38;Foltis, Inc., v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455, 460. After the jury had returned a verdict against the defendants Bank, Sano-Rubin and M. Gerber Construction Company, Inc., the...