Opinion
December 5, 1967
Judgment dismissing the plaintiff's cause of action at the close of the plaintiff's case, unanimously affirmed, without costs or disbursements. The evidence in this case relating to the condition of the steps in question is exceedingly meager. All we have are such conclusory, descriptive adjectives as "worn", "smooth", "slippery". Accordingly, although on the record before us we can do no other but affirm, we would note that the facts in Kline v. Abraham ( 178 N.Y. 377) are quite distinguishable from those in this case; and Mitcheltree v. Stair ( 135 App. Div. 210 [1st Dept.]), should not necessarily be followed. These cases do not preclude liability under comparable circumstances, where danger, not voluntarily assumed and due to negligent maintenance, is properly demonstrated.
Concur — Botein, P.J., Eager, Capozzoli, McGivern and Bastow, JJ.