Opinion
October 15, 1951.
Action to recover damages for personal injuries sustained by plaintiff, who in the nighttime, upon reaching the top of cellarway steps upon property adjoining appellant's property, passed across a narrow concreted area at the top of those steps on to appellant's property and there fell into another cellar stairway. Judgment in plaintiff's favor, entered upon the verdict of a jury, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. In our opinion plaintiff was a bare licensee upon appellant's property. There is no proof that the place where the accident occurred was used in common by the owners of the two properties, or that appellant willfully or wantonly inflicted the injuries upon plaintiff, or by any affirmative acts of negligence caused his accident. ( Mendelowitz v. Neisner, 258 N.Y. 181, 184; Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158-159, and cases there cited.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.