Opinion
May 6, 1938.
Action by plaintiff, here appellant, to recover from defendant, here respondent, damages for personal injuries sustained by reason of defendant's alleged negligence in the maintenance, in an insecure condition, of a certain roof porch railing of a house then being repaired by defendant, against which railing plaintiff leaned and fell to the ground. The issues were tried before the court and a jury. At the close of the proofs defendant moved to dismiss the complaint. The trial justice reserved decision upon that motion and submitted the issues to the jury, who rendered a verdict in favor of plaintiff. The reserved motion was then granted and the complaint was dismissed. From an order setting aside the verdict and dismissing the complaint and from the judgment entered thereon plaintiff appeals. Order and judgment severally affirmed, with costs. The plaintiff was not an invitee of the defendant upon the roof porch thus being repaired by the latter. He was at most a bare licensee. Upon the undisputed proof, the defendant was not liable to him. ( Barrett v. Brooklyn Heights R.R. Co., 188 App. Div. 109, 111; affd., 231 N.Y. 605; Mendelowitz v. Neisner, 258 id. 181, 184.)
Hagarty, Johnston and Taylor, JJ., concur; Lazansky, P.J., and Davis, J., dissent and vote to reverse and to reinstate the verdict, with the following memorandum:
Plaintiff had been invited by defendant to the building where he was hurt. He was an invitee at the place where the accident occurred.