Marcus v. Manhattan Beach Parks Corp.

Full title: BEATRICE LEE MARCUS, Appellant, v. MANHATTAN BEACH PARKS CORP., Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 24, 1936

246 App. Div. 331 (N.Y. App. Div. 1936)

284 N.Y.S. 952

Opinion

January 24, 1936.

Appeal from Supreme Court of New York County.

Benjamin Cohen of counsel [ Herman S. Stern, attorney], for the appellant.

Edward A. Harmon of counsel [ William E. Lowther, attorney], for the respondent.

Present — MARTIN, P.J., TOWNLEY, GLENNON, UNTERMYER and DORE, JJ.; MARTIN, P.J., and DORE, J., dissent and vote for affirmance.

PER CURIAM.

From the plaintiff's proof and the photographs in evidence, the jury could have found that the defect which caused the plaintiff's fall was the result of gradual wear or deterioration and that consequently the defendant was chargeable with constructive notice of the condition.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

PER CURIAM.

Judgment dismissing the complaint at the close of plaintiff's case reversed and a new trial ordered, with costs to the appellant to abide the event.