Opinion
May 4, 1942.
Action by plaintiff-wife to recover damages for personal injuries, and by her husband for loss of services and expenses. Plaintiff-wife, a patron of defendant's theatre, was injured when her heel caught in a hole in the rubber matting which covered the outer lobby. The court dismissed the complaint on the merits at the close of plaintiffs' case, on the ground that there was no proof that defendant had actual or constructive notice of the existence of the hole. The Appellate Term reversed the judgment of dismissal and granted a new trial, holding that proof of notice was not an essential element of plaintiffs' prima facie case. Order of the Appellate Term reversed on the law and the original judgment of the Municipal Court of the City of New York, Borough of Queens, reinstated, with costs in this court and in the Appellate Term. In Weingard v. Putnam Theatrical Corp. ( 225 App. Div. 808), this court held, upon facts substantially the same as in the instant case, that liability cannot be imposed upon a defendant in the absence of proof of actual or constructive notice of the defective condition complained of. Proof of notice is unnecessary where defendant created the condition or the defect was of such a nature that it, of itself, afforded notice. Lazansky, P.J., Hagarty, Johston, Adel and Close, JJ., concur.