Westbrook v. Onondaga Co.

• Decision Date: 20 July 1943
• Parties: George E. WESTBROOK, Appellant, v. ONONDAGA COMPANY, Respondent, et al.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 597

50 N.E.2d 1009

George E. WESTBROOK, Appellant,

v.ONONDAGA COMPANY, Respondent, et al.

Court of Appeals of New York.

July 20, 1943.

Appeal from Supreme Court, Appellate Division, Fourth Department, 266 App.Div. 708, 41 N.Y.S.2d 186.

Action by George E. Westbrook against Onondaga Company and others. The Onondaga Company was the lessee and in possession and control of a hotel in the City of Syracuse, New York. The plaintiff was an invitee at the hotel. He left the lobby, walked into the barroom in quest of some friends and, while walking back toward the lobby, slipped on the floor, striking his right knee and sustaining permanent injuries.

The floor of the barrom was composed of rubber tile. The theory on which the case was tried was not that the floor structure was in any way defective, but the theory of claimed liability was in the manner and method of maintaining and finishing the floor. The evidence disclosed that the entire floor was treated once a week by applying, first, a commercial cleaner known as Briten-all. The floor was then rinsed with clear water, then finished by the application of a wax known as Vestagloss, allowed to dry, and then buffed. The main aisle, however, leading from the barroom to the lobby, was treated in a different manner. Each night the Briten-all cleaner was applied, then rubbed with a dry mop, after which the Vesta-gloss or wax was applied and buffed.

At the close of plaintiff's case a nonsuit was granted as to all defendants except the named defendant and a verdict was rendered against it and defendant's motions for nonsuit and for new trial were denied by the Supreme Court, 36 N.Y.S.2d 494. The judgment and order of the Supreme Court were reversed by the Appellate Division, 266 App.Div. 708, 41 N.Y.S.2d 186 on the ground that the verdict was against the weight of the evidence. From the judgment of the Appellate Division, the plaintiff appeals.

Appeal withdrawn on condition.

PER CURIAM.

Appeal withdrawn on condition appellant pay respondent's disbursements.

All concur.