Opinion
November 28, 1955.
In an action to recover damages for personal injuries, plaintiff appeals from a judgment insofar as it dismisses his complaint. Judgment, insofar as appealed from, reversed on the law and new trial granted, with costs to appellant to abide the event. It was error for the Trial Justice to refuse to charge, as requested by appellant, that there was a statutory duty imposed upon the respondent to properly light the part of the premises adjacent to the freight elevator. Concededly, respondent owned the premises and the building in which the accident occurred. It was likewise conceded that the building was a tenant-factory building as defined by statute (Labor Law, § 315, subd. 2). The respondent, out of possession, had rented the entire building to Brooklyn Eagle, Inc., which sublet portions to three other parties who conducted factories on floors above those wherein the Brooklyn Eagle, Inc., the tenant of the whole premises, had its own factory. The freight elevator opened into the area occupied by one of the subtenants and the other two subtenants had the right to use the area immediately in front of the elevator shaft on the floors where they conducted their factories. The over-all tenant and the subtenants all used the elevator in connection with their factories. There was a common use of the entrance to the elevator on the ground floor. There was no dispute as to the nature of the articles transferred from the factories to the entrance or from the entrance to the elevator. The jury should have been instructed that under the circumstances existing here the entrance and elevator were embraced in the factory of the Brooklyn Eagle, Inc. (Labor Law, § 2, subd. 9) and that the duty to provide proper light was laid on the respondent-owner. (Labor Law, § 316, subd. 2; cf. Hente v. Shercoop Corp., 289 N.Y. 140. ) Whether or not there was a proper light maintained was a question of fact for the jury. We find no other ground warranting reversal. Nolan, P.J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.