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.