Opinion
May 27, 1938.
Action to recover damages for personal injuries suffered when the plaintiff fell against an open unguarded cellar door on the sidewalk. The complaint against the defendant-landlord was dismissed at the close of plaintiff's case and plaintiff obtained a verdict for $500 against the lessees. The appeal is from that part of the judgment which dismisses the complaint as against the landlord. Judgment, in so far as appealed from, reversed on the law and a new trial granted, with costs to appellant to abide the event. The plaintiff made a prima facie case against the landlord and it was error to dismiss the complaint against that defendant. Kirby v. Newman ( 239 N.Y. 470), upon which respondent relies, does not apply. There the negligence was that of mechanics who used the cellar for the benefit of a tenant and opened the doors leading to the cellar and left them open and unguarded. Here the owner permitted the use of the cellar and cellar doors by several tenants and reserved the right to enter the premises for the purpose of making repairs or alterations. The owner having retained control of the premises, it was his non-delegable duty to make the use of the sidewalk safe for traffic, or give warning of the danger. ( West v. Kingsway Realty Corporation, 218 App. Div. 494; Pensa v. Raleigh Hall, Inc., 243 id. 816; Diamond v. S.C.S. Garage, Inc., 251 id. 825; Gramegna v. Rubsam Horrmann Brewing Co., 252 id. 777; Loturco v. Turco, 249 id. 787.) Lazansky, P.J., Carswell, Davis, Johnston and Taylor, JJ., concur.