Opinion
November 5, 1970
Appeal from the Monroe Trial Term.
Present — Goldman, P.J., Marsh, Witmer, Moule and Henry, JJ.
Judgment unanimously reversed on the law and facts and new trial granted, with costs to abide the event. Memorandum: The court correctly charged the jury concerning defendant's duty to a licensee and to an invitee. Questions of fact were presented concerning the intent of the parties as to when title to the property purchased by plaintiff from defendant was to pass; whether it had passed to the plaintiff prior to his accident on the premises; and whether plaintiff was an invitee thereon at the time of the accident. Plaintiff testified that he was invited by defendant's agent to enter the property on the night of the accident for the purpose of looking at furniture there, to determine whether plaintiff wished to buy it. Defendant denied this and denied that there was any furniture in the property. Plaintiff further testified that he had gone to the property previously at night and found that the light in the garage did not function, and at that time he saw water leaking from the walls of the garage and cans of paint and litter on the floor. This he saw by aid of a hall light. On the night in question he again entered the garage and found the light inoperative, but by the aid of his automobile lights, on low beam, he was able to see therein to some extent. He picked up a carton of cans to move them and then slipped, fell and was injured. A friend of plaintiff then turned up the lights on plaintiff's automobile so that they could see better, to ascertain the cause of plaintiff's slipping. He did not enter the house to view the furniture, but testified that his wife did so later. Upon this testimony issues of fact and law were presented which were not properly submitted to the jury. Accepting plaintiff's testimony completely, a question was presented as to whether he was a licensee or an invitee at the time of his injury, that is, was he at that time pursuing the invitation to him to look at the furniture. "The mere fact that a person has an invitation to enter upon defendant's premises does not necessarily give him the right to wander all over at will." (3 Warren's Negligence, Invitees, § 1.09.) If for his own purposes he goes where he was not invited, he becomes a licensee (ibid., § 4.02; Sanders v. Favorable Realty Corp., 290 N.Y. 591; Nesterovich v. Mount Olivet Cemetery, 212 App. Div. 286; Morrison v. Hotel Rutledge Co., 200 App. Div. 636; Prosser, Torts [3d ed.], pp. 401-402). It thus became a question of fact whether plaintiff was acting in the course of his invitation when he was injured ( McNally v. Oakwood, 210 App. Div. 612, affd. 240 N.Y. 600). Although the court was not requested to point up this question for the jury, we deem it to be such a critical aspect of liability in this case that in the interest of justice the judgment should be reversed and a new trial granted ( Van v. Clayburn, 21 A.D.2d 144, 147; Siekierski v. Derleth, 13 A.D.2d 715, 716). Moreover, on the facts in this case we think the jury's finding, implicit in the verdict, that plaintiff was free from contributory negligence was against the weight of the evidence; and upon this ground also the judgment should be reversed and a new trial granted.