Opinion
June 26, 1935.
Appeal from Supreme Court of Herkimer County.
Oscar J. Brown [ Edward T. Wilber of counsel], for the appellant Mary Hines.
S.W. Brennan, for the appellant Dominion Operating Company, Ltd.
Fred J. O'Donnell, for the respondent.
Present — SEARS, P.J., TAYLOR, THOMPSON, CROSBY and LEWIS, JJ.
Negligence as to defendant Hines is properly predicated upon the maintenance of an unguarded depressed basement entrance on her premises abutting upon or near a public alleyway where persons using the alleyway were in danger of falling. ( Beck v. Carter, 68 N.Y. 283; Klepper v. Seymour House Corp., 246 id. 85.) As to the Dominion Operating Company, Ltd., however, no duty which it owed the plaintiff as a member of a theatrical troupe in its theatre extended so far as to obligate it to protect the premises at the point of the accident or to prevent persons legally using the alleyway, whether members of its theatrical troupe or not, from such an accident as the plaintiff met with. There was also error on the part of the trial justice in permitting the jury to consider the provisions of section 470 Lab. of the Labor Law as bearing upon the negligence of the defendant Dominion Operating Company, Ltd., as no defect in its premises was in any respect the legal cause of the accident.
All concur, except THOMPSON and CROSBY, JJ., who dissent only in so far as the Dominion Operating Company, Ltd., is concerned and vote for affirmance of the judgment as to it.
Judgment reversed on the law, with costs as to defendant Dominion Operating Company, Ltd., and complaint dismissed as to it, with costs, and as to defendant Hines affirmed, with costs.