Small v. Ruhmshottel

Full title: ANNA M. SMALL, Appellant, v. CARL RUHMSHOTTEL et al., Copartners Doing…

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

Date published: Dec 7, 1953

282 App. Div. 1052 (N.Y. App. Div. 1953)

Opinion

December 7, 1953.

Action to recover damages for personal injuries. Plaintiff was a business visitor upon land where shrubs were grown and sold. She stepped into a hole near a path, and was injured. Presumably, on the evidence, the hole resulted from the removal of a plant that was being sold. The Trial Justice dismissed the complaint at the end of the plaintiff's case on the ground that defendants did not have control of the portion of the premises upon which the accident happened, the shrubbery business being operated by defendants' employee on his own account; and that in any event defendants had no knowledge or notice of the defective or dangerous condition. Plaintiff appeals from the judgment entered thereon. Judgment, insofar as appeal is taken, affirmed, with costs. No opinion.

Adel, Wenzel and Beldock, JJ., concur;

Nolan, P.J., and MacCrate, J., concur as to the partnership defendants, but dissent and vote to reverse the judgment and to grant a new trial as to the defendant Carl Ruhmshottel, individually, with the following memorandum:

In our opinion, a question of fact was presented, as to the control of the premises upon which the accident occurred, by the defendant Carl Ruhmshottel, and as to his responsibility for the condition which was alleged to have caused the accident. (Cf. Green v. Murray M. Rosenberg, Inc., 295 N.Y. 584; McGuire v. Interborough R.T. Co., 104 App. Div. 105, 108, and Santise v. Martins, Inc., 258 App. Div. 663.)