Traub v. Liekefet

• Decision Date: 26 June 1956
• Citation: 25 A.L.R.2d 598,2 A.D.2d 22,152 N.Y.S.2d 971
• Parties: Carolyn TRAUB and Arthur Traub, Plaintiffs-Respondents, v. George LIEKEFET and Olive Liekefet, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 971

152 N.Y.S.2d 971

2 A.D.2d 22

Carolyn TRAUB and Arthur Traub, Plaintiffs-Respondents, v. George LIEKEFET and Olive Liekefet, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

June 26, 1956.

Archie B. Morrison, New York City, of counsel (Robert A. Dwyer and Patrick D. Warren, New York City, with him on the brief; William S. O'Connor, New York City, attorney), for defendants-appellants.

John V. Higgins, New York City, of counsel (O'Neill, Higgins & Latto, New York City, attorneys) for plaintiffs-respondents.

Before PECK, P. J., and BREITEL, FRANK, VALENTE and BERGAN, JJ.

PER CURIAM.

This is an appeal by defendants from a judgment in favor of the plaintiffs in the sum of $3,200 and $1,800, respectively. The gravamen of plaintiffs' complaint was that the defendants maintained a dangerous condition which consisted of a loose rug on a slippery floor in a vestibule of defendants' one-family house.

It appears from the testimony that the plaintiffs, guests of defendants, entered the premises by means of a side entrance. The doorway opened into a three by five foot vestibule with a linoleum floor almost completely covered by a loose rug. At a point one-half the length of the vestibule was a door leading into the kitchen and at the end of the vestibule a flight of stairs leading to the cellar. There is no claim that the steps constituted a dangerous condition or that they contributed to the accident.

Plaintiff wife testified that she walked a few feet forward in the vestibule when the rug slipped from under her feet and she fell down the stairs. Plaintiff husband testified that he was in the vestibule--but not on the rug--one foot or less behind his wife, when he saw the rug slip out from under her feet, precipitating her down the stairs. Another witness testified that she was in the vestibule at the time with the plaintiffs and that the rug did not move or jerk. From this testimony and the exhibits if the husband was a foot or less behind the wife in the vestibule he must have been on the rug when she fell. Accepting this, the accident could not have happened as plaintiff wife testified. There was no testimony that the floor was waxed or that any preparation was applied to it.

The sole issue presented is whether the evidence established that a dangerous condition or trap was created by defendants. There is no evidence to sustain this theory.

Plaintiff was a licensee and took the premises as she found them. Mendelowitz v. Neisner, 258 N.Y. 181, 179 N.E. 378; Roth v. Prudential Life Ins. Co. of New York, 266 App.Div. 872, 42 N.Y.S.2d 592....