Cooper v. Fleischman

142 N.Y.S. 355

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 24, 1913
• Status: Published

Opinion

PER CURIAM.

The complaint in this action was demurred to, the demurrer sustained, and after that judgment entered in favor of the defendant, from which plaintiff appeals.

The complaint alleged that the plaintiff, while in the employ of the defendant, engaged in painting, was making use of a stepladder, which had been supplied by the defendant, and that without any fault or negligence of the plaintiff the ladder broke and the plaintiff fell to the floor, sustaining serious injuries. It is also alleged that, prior to the time of the accident, the defendant had used the same ladder; that it was worn loose, and was unfit for use, of which defendant had knowledge; that on the day of the accident the defendant had represented that the ladder had been repaired, and that it was all right; and that he directed the plaintiff to use the same. It also avers that the repairs were so made that no inspection could have disclosed its defective condition. A mere statement of the allegations above set forth shows that a cause of action was alleged, and that the demurrer should not have been sustained, but overruled.

Judgment reversed, with costs, and demurrer overruled, with leave to the defendant to withdraw the demurrer and answer, upon payment of costs in this court and $5 costs in the court below, within five days after service of a copy of this order with notice of entry.