Opinion
March 31, 1966
Judgment of Civil Court and determination of Appellate Term affirming said judgment unanimously reversed on the law and on the facts and new trial granted, with $50 costs and disbursements to appellants to abide the event. Plaintiff, an employee of a tenant in a building owned by defendants, was injured when struck by a piece of falling cement. There was proof that a ceiling crossbeam had been covered with such material to minimize rusting of the steel girder. One of the principal issues was whether the duty to repair rested upon defendants or plaintiff's employer, the tenant. In the light of the several pertinent provisions of the lease and the proof upon the trial it was error for the trial court to charge as a matter of law that the repair was in the nature of a structural one to be made by the landlords. A factual issue was presented that should have been submitted to the jury.
Concur — Botein, P.J., Breitel, Eager, Steuer and Bastow, JJ.