Opinion
December, 1906.
Samuel Frank, for appellant.
Nadal Carrere (William D. Stiger and Harold S. Recknagel, of counsel), for respondent.
Plaintiff, a tenant in a tenement-house, went to do some marketing and, upon her return half an hour later, claims to have been injured by falling in a hole in the basement hallway near the door of her apartment. Her husband testified that, during the time of his wife's absence, he saw the housekeeper working in the hallway in or about the hole and later, upon hearing his wife scream, he went out and saw her with one foot in. Hallway was dark. Defendant's housekeeper was called, but was not questioned about the work he was doing in the hallway when seen by plaintiff's husband. If the hall was rendered dangerous by any act on the part of defendant's servant and no precaution to enable tenants, by the exercise of reasonable care, to guard against accident, a question of fact was presented and a prima facie case made out; and it was error to dismiss the complaint.
GILDERSLEEVE and DAVIS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.