Buono v. W. J. I. Building Corp.

Appellate Division of the Supreme Court of New York

Buono v. W. J. I. Building Corp.

241 A.D. 764

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

DecidedMarch 15, 1934

StatusPublished

Cited by1 cases

This text of 241 A.D. 764 (Buono v. W. J. I. Building Corp.) 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.

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Buono v. W. J. I. Building Corp., 241 A.D. 764 (N.Y. Ct. App. 1934).

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Opinion

Order denying motions of the appealing defendants for judgment on the pleadings affirmed, with ten dollars costs and disbursements. The plaintiff on a motion of this character, where he has pleaded in the alternative, may have the benefit only of the lesser allegation respecting liability. Ordinarily, it may be that liability to one situated as is the plaintiff may not be predicated on the theory of constructive notice of his presence on the property. Nevertheless, the trial may develop facts that Would east upon the defendants the duty of refraining from throwing a plank into the alley in disregard of whether or not the plaintiff or others like him were in the alley if it were used to the knowledge of the defendants by children such as the plaintiff. In other words, peculiar circumstances may make applicable the doctrine of constructive notice in a manner which [765]*765may permit a holding that that which the defendants did was a willful act and, therefore, a breach of duty owing even to a licensee. (Mendelowitz v. Neisner, 258 N. Y. 181, 183; Sicklick v. Schasseur, 221 App. Div. 742, 746; Johansson v. Kemp, 211 id. 276, 278.) That question may not be decided upon mere pleadings. It must await the trial. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.

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Order denying motions of the appealing defendants for judgment on the pleadings affirmed, with ten dollars costs and disbursements. The plaintiff on a motion of this character, where he has pleaded in the alternative, may have the benefit only of the lesser allegation respecting liability. Ordinarily, it may be that liability to one situated as is the plaintiff may not be predicated on the theory of constructive notice of his presence on the property. Nevertheless, the trial may develop facts that Would east upon the defendants the duty of refraining from throwing a plank into the alley in disregard of whether or not the plaintiff or others like him were in the alley if it were used to the knowledge of the defendants by children such as the plaintiff. In other words, peculiar circumstances may make applicable the doctrine of constructive notice in a manner which [765]*765may permit a holding that that which the defendants did was a willful act and, therefore, a breach of duty owing even to a licensee. (Mendelowitz v. Neisner, 258 N. Y. 181, 183; Sicklick v. Schasseur, 221 App. Div. 742, 746; Johansson v. Kemp, 211 id. 276, 278.) That question may not be decided upon mere pleadings. It must await the trial. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.

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241 A.D. 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buono-v-w-j-i-building-corp-nyappdiv-1934.

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