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Bencekovich v. Aubry

Appellate Division of the Supreme Court of New York, First Department
May 28, 1937
251 App. Div. 268 (N.Y. App. Div. 1937)

Opinion

May 28, 1937.

Appeal from Supreme Court of New York County.

Joseph R. Apfel of counsel [ Louis Fleischer, attorney], for the appellant.

Frederick Mellor of counsel [ William Butler, attorney], for the respondent.

Present — MARTIN, P.J., O'MALLEY, DORE, COHN and CALLAHAN, JJ.; MARTIN, P.J., dissents and votes to affirm.


Plaintiff's evidence established prima facie that her intestate in entering on the roof extension was an invitee, not a mere licensee. With respect to the question of contributory negligence, the burden of proving which rested upon the defendant, there was presented a question of fact for the jury. Under the circumstances, therefore, the complaint was improperly dismissed.

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


Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.


Summaries of

Bencekovich v. Aubry

Appellate Division of the Supreme Court of New York, First Department
May 28, 1937
251 App. Div. 268 (N.Y. App. Div. 1937)
Case details for

Bencekovich v. Aubry

Case Details

Full title:MARY BENCEKOVICH, as Administratrix, etc., of VINKO BENCEKOVICH, Deceased…

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

Date published: May 28, 1937

Citations

251 App. Div. 268 (N.Y. App. Div. 1937)
296 N.Y.S. 406