Dimare v. George F. Driscoll Co.

Appellate Division of the Supreme Court of New York

Dimare v. George F. Driscoll Co.

241 A.D. 736

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. 736 (Dimare v. George F. Driscoll Co.) 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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Dimare v. George F. Driscoll Co., 241 A.D. 736 (N.Y. Ct. App. 1934).

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Opinion

Judgment reversed on the law, with costs, and complaint dismissed, with costs, on the grounds: (1) The place from which plaintiff fell was not a place of work which the general contractor was bound to keep safe from the defects of which complaint is here made; it was under the control of plaintiff’s employer. (See general rule stated by Mr. Justice Davis in Wohlfron v. Brooklyn Edison Co., Inc., 238 App. Div. 463; affd., 263 N. Y. 547.) (2) It was not a place of work provided by defendant, appellant. (Iacono v. Frank & Frank Contracting Co., 259 N. Y. 377.) (3) To charge defendant, appellant, with negligence under the facts in this case would require of it a measure of duty which would go beyond the bounds of what is practicable and reasonable. (Caspersen v. La Sala Bros., 253 N. Y. 491.) The direction alleged to have been given by the superintendent of defendant, appellant, to the foreman of plaintiff, that the employees of whom the foreman had charge should proceed to do their Work on the second floor was not an assumption of control by defendant, appellant, of the work to be done or the place in which it was to be done. In view of the foregoing, plaintiff’s appeal is dismissed. Lazansky, P. J., Kapper, Hagarty, Carswell and Seudder, JJ., concur.

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Judgment reversed on the law, with costs, and complaint dismissed, with costs, on the grounds: (1) The place from which plaintiff fell was not a place of work which the general contractor was bound to keep safe from the defects of which complaint is here made; it was under the control of plaintiff’s employer. (See general rule stated by Mr. Justice Davis in Wohlfron v. Brooklyn Edison Co., Inc., 238 App. Div. 463; affd., 263 N. Y. 547.) (2) It was not a place of work provided by defendant, appellant. (Iacono v. Frank & Frank Contracting Co., 259 N. Y. 377.) (3) To charge defendant, appellant, with negligence under the facts in this case would require of it a measure of duty which would go beyond the bounds of what is practicable and reasonable. (Caspersen v. La Sala Bros., 253 N. Y. 491.) The direction alleged to have been given by the superintendent of defendant, appellant, to the foreman of plaintiff, that the employees of whom the foreman had charge should proceed to do their Work on the second floor was not an assumption of control by defendant, appellant, of the work to be done or the place in which it was to be done. In view of the foregoing, plaintiff’s appeal is dismissed. Lazansky, P. J., Kapper, Hagarty, Carswell and Seudder, JJ., concur.

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241 A.D. 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimare-v-george-f-driscoll-co-nyappdiv-1934.

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