Bencekovich v. Aubry

Appellate Division of the Supreme Court of New York

Bencekovich v. Aubry

251 A.D. 268, 296 N.Y.S. 406, 1937 N.Y. App. Div. LEXIS 6912

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 1937

StatusPublished

This text of 251 A.D. 268 (Bencekovich v. Aubry) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bencekovich v. Aubry, 251 A.D. 268, 296 N.Y.S. 406, 1937 N.Y. App. Div. LEXIS 6912 (N.Y. Ct. App. 1937).

Pincite

Opinion

Per Curiam.

Plaintiff’s evidence established prima facie that her intestate in entering on the roof extension was an invitee, not a mere licensee. With respect to the question of contributory negligence, the burden of proving which rested upon the defendant, there was presented a question of fact for the jury. Under the circumstances, therefore, the complaint was improperly dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Martin, P. J., O’Malley, Dore, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

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Per Curiam.

Plaintiff’s evidence established prima facie that her intestate in entering on the roof extension was an invitee, not a mere licensee. With respect to the question of contributory negligence, the burden of proving which rested upon the defendant, there was presented a question of fact for the jury. Under the circumstances, therefore, the complaint was improperly dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Martin, P. J., O’Malley, Dore, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

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Bluebook (online)

251 A.D. 268, 296 N.Y.S. 406, 1937 N.Y. App. Div. LEXIS 6912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bencekovich-v-aubry-nyappdiv-1937.