Durante v. Huff

245 A.D. 832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1935
• Status: Published

Opinion

Action to recover damages for personal injuries sustained by plaintiff when a dilapidated building, in which he was gathering wood for his own use, collapsed and fell upon him. Appeal from order dismissing complaint at the close of plaintiff’s case and from the judgment entered thereon. Order and judgment affirmed, with costs. No opinion. Young, Carswell, Tompkins and Johnston, JJ., concur; Lazansky, P. J., dissents and votes for reversal and a new trial, with the following memorandum; The building was in a dilapidated condition and a menace to life and limb. It was defendants’ duty to warn even a licensee against the imminent danger. As to plaintiff’s knowledge of the danger, there was a question of fact for the jury. The complaint should not have been dismissed.