Opinion
December 5, 1949.
In an action to recover damages for wrongful death, allegedly caused by the negligence of appellant, judgment in favor of respondent reversed on the law and a new trial granted, with costs to appellant to abide the event. Decedent, three years and four months old at the time of his death, fell from a window in the hall of the seventh floor of a multiple dwelling owned by defendant. The window in question was located at the end of a public hall. This window, and the window of the stair well immediately to the left of the public hall, were continuous and were constructed as one window frame, the wall separating the public hall from the stair well extending to the center of the window frame. Immediately to the left of the window in question, and at right angles thereto, was a metal door which opened outward onto a stair and stair landing, the metal door, when closed, being part of the wall which separated the stair from the hall. This method of construction constituted the window through which decedent fell a separate public hall window, and not part of the stair window. Under these circumstances, the provisions of section 62 Mult. Dwell. of the Multiple Dwelling Law had no application. The court charged that the jury might find appellant negligent either on the theory of a violation of section 62 Mult. Dwell. of the Multiple Dwelling Law or common-law negligence. Since the theory of violation of section 62 Mult. Dwell. of the Multiple Dwelling Law was erroneously submitted to the jury, and there was merely a general verdict, the judgment must be reversed as we have no way of determining upon which theory the case was decided. ( Hansen v. New York City Housing Authority, 271 App. Div. 986.) A new trial is directed because there is a question of fact for the jury whether appellant was guilty of common-law negligence. Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur. [See post, p. 907.]