Opinion
May 12, 1947.
Present — Carswell, Acting P.J., Johnston, Adel, Nolan and Sneed, JJ.
Action to recover damages for personal injuries due to plaintiff's fall on a defective pavement in the back yard of defendant's three-family house. Judgment in favor of plaintiff unanimously affirmed, with costs. This is not a case of a mere difference in level between two adjoining segments of pavement. It falls within the category of the so-called "space" or "hole" cases. ( Leach v. Town of Eastchester, 265 App. Div. 895, affd. 290 N.Y. 619; Wilson v. Jaybro Realty Development Co., 289 N.Y. 410; 266 App. Div. 668; Hayes v. City of New York, 267 App. Div. 535.) The plaintiff, a tenant, was an invitee and not a mere licensee. ( Oliver v. Tenerello, 271 App. Div. 983; Berras v. Keane, 231 N.Y. 566; Petersen v. Crawford, 263 App. Div. 617; Karlson v. Healy, 38 App. Div. 486. ) The case of Walker v. Bachman ( 268 N.Y. 294) is clearly distinguishable.