Summary
In Weingard v. Putnam Theatrical Corp. (225 App. Div. 808), this court held, upon facts substantially the same as in the instant case, that liability cannot be imposed upon a defendant in the absence of proof of actual or constructive notice of the defective condition complained of. Proof of notice is unnecessary where defendant created the condition or the defect was of such a nature that it, of itself, afforded notice.
Summary of this case from Heddink v. Loew's Theatre and Realty CorporationOpinion
January, 1929.
Judgment reversed upon the law and new trial granted, costs to appellant to abide the event. The trial court improperly charged the jury that defendant was liable if the carpet was torn and the plaintiff caught her foot in it and fell for that reason. Liability could not be imposed upon defendant unless it was also shown that this condition of the carpet was known to defendant, or had existed for such a length of time that defendant should have known of it, or was of such a nature that it must have existed for such a length of time as to give it notice. Lazansky, P.J., Young, Hagarty and Seeger, JJ., concur; Carswell, J., dissents and votes for reversal and a dismissal of the complaint.