De Courcey v. R. U. Delapenha & Co.

169 A.D. 551, 155 N.Y.S. 435, 1915 N.Y. App. Div. LEXIS 4975

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1915
• Status: Published

Opinion

Scott, J.:

Plaintiff slipped and fell upon a sidewalk in front of certain premises in the city of New York of which defendants R. U. Delapenha & Co. were general lessees, and a firm in which appellant MeCabe was a partner was sublessee of the store and basement. It was attempted by plaintiff to prove, or rather to induce an inference, for of proof there was none, that the sidewalk had been rendered slippery by the act of the defendants MeCabe in permitting butter to melt and run on the walk. As the court correctly said in its charge, there was not a scintilla of evidence that there was any butter or any grease on the sidewalk. All that was proved was that the sidewalk was dirty and wet and slippery, but there was nothing to show that any act of either of the defendants contributed to bringing about that condition. The court charged in plain terms that it was the duty of the owner, lessee or occupant- of premises abutting upon the sidewalk to keep the sidewalk in a reasonably safe condition for the use of pedestrians, thus leaving it open to the jury to mulct the defendants in damages for their failure to keep the sidewalk clean and dry. This was error, and imposed upon the defendants a duty which the law does not put upon them. (City of Rochester v. Campbell, 123 N. Y. 405; Brown v. Wysong, 1 App. Div. 423.) The plaintiff's case was made no stronger by the mtroduction in evidence of the snow and ice ordinance as bearing upon an accident which happened in August.

The judgment and order appealed from are reversed and the complaint dismissed, with costs of the action and this appeal to the appellants.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs.