De Wald v. Seidenberg
| Decision Date | 22 April 1948 |
| Citation | 297 N.Y. 335,79 N.E.2d 430 |
| Parties | DE WALD v. SEIDENBERG et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by Josef De Wald against William R. Seidenberg and another, individually and as trustee of the estate of Jacob Bookman, deceased, and another to recover damages for an alleged assault. From a judgment entered on an order of the Appellate Division of the Supreme Court in the Second Judicial Department, 272 App.Div. 937, 72 N.Y.S.2d 185, which reversed on the law and facts a judgment of Supreme Court in favor of plaintiff on a verdict rendered at trial term, Wenzel, J., and dismissed the complaint on the law, the plaintiff appeals.
Judgments reversed and new trial granted. Samuel Spevack, Bernard Meyerson and Lrving R. Rosenthal, all of Brooklyn, for appellant.
Walter L. Glenney, of New York City, for respondent.
In this action a jury at Trial Term awarded damages against the owners of an apartment house and their superintendent for an assault committed by the superintendent upon the plaintiff, a tenant. Following the verdict the Trial Justice granted a motion by the defendant-owners for judgment over against their superintendent for the amount of the judgment entered against them. The superintendent did not appeal from the resulting judgment. Upon appeal by the owners to the Appellate Division the judgment was reversed on the law and the facts and the complaint was dismissed on the law upon the ground that plaintiff's evidence was insufficient to establish his cause of action. The present appeal is by the plaintiff from the judgment entered upon the order of the Appellate Division.
In those circumstances we shall consider the facts in the light most favorable to the plaintiff-appellant. In the phase of our inquiry which requires us to determine whether the facts proved constitute a cause of action, we shall give to the plaintiff the benefit of every favorable inference which can reasonably be drawn therefrom. Osipoff v. City of New York, 286 N.Y. 422, 425, 36 N.E.2d 646, 647, 136 A.L.R. 1354;Faber v. City of New York, 213 N.Y. 411, 414,107 N.E. 756, 757.
The plaintiff is a tenant in an apartment house in New York City of which the defendants-respondents, Seidenberg and Bookman, are owners and the defendant Kilkenny is the superintendent. There is evidence that there had been occasions when a maid in plaintiff's employ had thrown water and articles of waste from a window which opened upon a courtyard. Those occurrences were in violation of a rule prescribed by the owners to regulate the use of the apartments, of which rule the plaintiff had notice. In the enforcement of that rule, which the owners required of the superintendent, he had warned the plaintiff's maid not to repeat her offenses. Despite such warning there came a day when water thrown from a window in plaintiff's apartment fell upon and drenched the superintendent as he was about to enter a basement door directly below. Brief but heated remonstrances then went up from the superintendent and curt retorts came down from the plaintiff's maid which in character were so abusive as to suggest their omission here. Fifteen minutes later the superintendent in clothes still wet appeared at the door of plaintiff's apartment and asked of the maid that he be permitted to talk with her employer. When the plaintiff appeared and had been told that water had again been thrown from a window of his apartment, he stated that he had instructed the maid never to throw ‘even a match’ into the courtyard. Later having questioned the maid the plaintiff denied that she had thrown the water of which complaint was being made. When the...
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Smith v. Brown
...Id. at 535, 169 N.Y.S.2d 449, 147 N.E.2d 1. Another case applying the doctrine in the assault context is De Wald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430 (1948), in which a building superintendent pushed a tenant down a flight of stairs following a heated discussion with the tenant as par......
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Rosenfeld v. Lenich
...judgment after trial on the grounds that assault of unruly patron by bartender was within scope of employment); De Wald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430, 431-32 (1948) (court could not say as a matter of law that assault of tenant by building superintendent during attempted enforc......
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Dean v. City of Buffalo
...time the tort was committed. Riviello v. Waldron, 47 N.Y.2d 297, 303, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979); De Wald v. Seidenberg, 297 N.Y. 335, 338, 79 N.E.2d 430 (1948). See also Adams v. New York City Transit Auth., 88 N.Y.2d 116, 119, 643 N.Y.S.2d 511, 666 N.E.2d 216 (1996) ("as a g......
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Rivera v. State
...of an inmate involved in an altercation with an officer (see Restatement [Third] of Agency § 7.07 Comment b; cf. De Wald v. Seidenberg, 297 N.Y. 335, 79 N.E.2d 430 [1948] ).The majority further concludes that summary judgment should be granted for the State because the State's prima facie c......