Davidoff v. Cohen

136 Misc. 404, 241 N.Y.S. 436, 1930 N.Y. Misc. LEXIS 1200

Opinion

Per Curiam.

Plaintiff, a tenant in defendant’s tenement house, was coming down the front steps of the house to the sidewalk on a morning- in May when she slipped and fell. She testified: “I missed my step and there was no railing to grab hold of * * * I wanted to grab hold of something. There was nothing there and I fell down.”

There was no banister or railing to or on the steps although the Tenement House Law, section 35, provides that “ in every tenement house all stairways shall be provided with proper banisters and railings and kept in good repair.”

The photograph of the stairway in evidence shows that the stairway, consisting of five or six stone steps, is twice as wide as the front doorway, and apparently it has been assumed by the learned trial judge that if a banister or railing had been erected it must have been on the two side copings and that, therefore, the banisters would have been so far away from the point at which plaintiff was descending that their presence would not have prevented the accident. The terms of the statute, however, are that such “ stairways shall be provided with proper banisters,” and a banister so far away that the one using the stairway could not reach it would certainly not be “ proper.”

The violation of the statute constituted negligence on the part of the defendant (Martin v. Herzog, 228 N. Y. 164) and such negligence was the proximate cause of plaintiff’s injury.

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

All concur; present, Bijur, Lydon and Frankenthaler, JJ.