Opinion
May 7, 1951.
In a negligence action by an infant to recover damages for personal injuries and by his father to recover for expenses, order denying appellant's motion to dismiss the amended complaint for insufficiency reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. The appellant, who had conveyed the premises in question eleven months prior to the happening of the accident, cannot be held liable for an alleged defective condition consisting of a rotted window frame and an insecurely attached bar. ( Kilmer v. White, 254 N.Y. 64, 70; Jackson v. Martin, 271 App. Div. 796, affd. 297 N.Y. 487; Fink v. 37 W. 36th St. Co., 277 N.Y. 703. ) Plaintiffs affirmatively plead that the vendees knew or should have known of the alleged defective condition. This is not a case where the alleged negligent condition was created by the vendor out of possession. ( Brown v. Welsbach Corp., 301 N.Y. 202, 205.) Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ., concur.