Opinion
October 14, 1946.
Action to recover damages for personal injuries sustained by plaintiff, an invitee of a tenant of defendant, by reason of a fall allegedly caused by a step which was insecurely fastened to the ground. Judgment reversed on the law, with costs, and complaint dismissed on the law, with costs. The facts are affirmed. Defendant had let the premises in their entirety, without reservation, to the tenant. The tenant, immediately after the original letting, and approximately three months prior to the happening of the accident, undisputedly, had inspected this step and had found that it was insecure and so was cognizant of the alleged defective condition which existed at the time of the original letting. ( Kilmer v. White, 254 N.Y. 64, 70; Lenetsky v. Dime Savings Bank of Brooklyn, 261 App. Div. 977; Restatement, Torts, § 358; cf. Rosine v. Richmond County Federal Savings Loan Assn., 294 N.Y. 682.) Proof to the effect that the defendant had insured the property could not in itself serve to create an issue with respect to reservation of control. In the absence of other proof adduced by defendant which served to create an issue, the proof with respect to procurement of insurance was highly prejudicial, irrelevant and incompetent. (Cf. Rashall v. Morra, 250 App. Div. 474.) Lewis, P.J., Hagarty, Carswell, Adel and Aldrich, JJ., concur.