Opinion
November 17, 1958
Action by a pedestrian to recover damages for personal injuries, received when he fell through open cellar doors on the sidewalk, against Ethel Donner, the owner of the premises, and Henry and Mary M. Doherty, the tenants of a part of said premises on the ground floor, including the cellar thereunder. At the close of the entire case, the court dismissed the complaint as against the owner, and the jury rendered a verdict in favor of the tenants against the pedestrian. The appeal is from the judgment entered thereon. Judgment affirmed, with costs. No opinion. Wenzel, Murphy, Ughetta and Hallinan, JJ., concur; Nolan, P.J., concurs in the affirmance of the judgment insofar as it is in favor of the tenants and against appellant, but dissents from the affirmance of the judgment insofar as it is in favor of the owner and against appellant, and votes to reverse that part of the judgment and to grant a new trial, with the following memorandum: The record discloses that the respondent Donner did not surrender complete control of the cellar to the respondents Doherty. Under such circumstances the respondent Donner, as landlord, had the nondelegable duty of exercising due care with respect to the operation and maintenance of the cellar doors ( Pensa v. Raleigh Hall, 243 App. Div. 816). Hence, it was error to have dismissed the complaint as against her. (See, also, Clifford v. Dam, 81 N.Y. 52.)