Opinion
March, 1935.
Order of Appellate Term, in so far as it reverses the judgment of the Municipal Court as against defendant Raleigh Hall, Inc., reversed on the law and judgment of the Municipal Court as against said defendant affirmed, with costs in all courts. The plaintiff, while passing along the sidewalk in front of the premises owned by respondent, fell and was injured by the opening of a cellar door in the street without warning. The owner had control of the cellar and the cellar doors and permitted use thereof by several tenants of the building, but provided no means of warning passersby when the doors were about to be opened. The doors were opened by an employee of one of the tenants. The duty of the owner to make the use of the sidewalk safe for traffic or give adequate warning of the danger to be apprehended was a non-delegable one as long as it retained control of the premises. ( Irvine v. Wood, 51 N.Y. 224; Swords v. Edgar, 59 id. 28; Scott v. Curtis, 195 id. 424; Appel v. Muller, 262 id. 278, and West v. Kingsway Realty Corporation, 218 App. Div. 494. ) The rule in Kirby v. Newman ( 239 N.Y. 470) and Wilks v. N.Y. Telephone Co. (243 id. 351) is readily distinguishable. Lazansky, P.J., Hagarty, Scudder, Tompkins and Davis, JJ., concur.