Summary
holding that the minor plaintiff was an invitee in the yard of the defendants' apartment house, and that the defendants should have anticipated the plaintiff would be injured by the defective condition of a retaining wall in their yard, which had long been used by the plaintiff and the tenants' children as a play space
Summary of this case from Macias v. Summit Mgmt., Inc.Opinion
April 10, 1942.
Appeal from Supreme Court of New York County, LEVY, J.
Herman E. Brookman, for the appellant.
William E. Lyons of counsel [ Ireland Cohen, attorneys], for the respondents.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
The evidence was sufficient to establish that the infant plaintiff, who was a playmate of a tenant, was an invitee; and that the yard appurtenant to defendants' apartment houses had been used for a long time by plaintiff and the children of the tenants so as to make it a place used with the knowledge and consent of defendants, thus charging them with the duty of keeping it in a reasonably safe condition. ( Murtha v. Ridley, 232 N.Y. 488; Parnell v. Holland Furnace Co., 234 App. Div. 567, 570; affd., 260 N.Y. 604.) There was also ample evidence to support a finding that defendants should have anticipated that the infant would be likely to play as he did, and that the defective condition of the retaining wall of the yard might subject him to injury. ( Bowers v. City Bank Farmers Trust Co., 282 N.Y. 442; Collentine v. City of New York, 279 id. 119.) Accordingly, it was error to dismiss the complaint.
The judgment should be reversed, with costs to the appellant, and a new trial ordered.
Judgment unanimously reversed, with costs to the appellant, and a new trial ordered.