Farber v. Tepper

249 A.D. 785, 292 N.Y.S. 217, 1936 N.Y. App. Div. LEXIS 6003

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1936
• Status: Published

Opinion

Action by an infant to recover damages for personal injuries sustained when she tripped on an alleged defective “ nosing ” on the stairway of an apartment house owned by defendants, and by her father to recover for expenses and loss of services. The verdict was in favor of defendants. Plaintiffs appeal from the judgment. Judgment in favor of defendants reversed on the law and a new trial granted, with costs to the appellants to abide the event. The exclusion of plaintiffs’ Exhibit 3 for identification, which was a signed statement by defendant Esther Tepper, dated “ the day of May, 1933,” constituted reversible error. It was contradictory of the testimony of Esther Tepper at folio 284 of the record to the effect that the stairway was not in broken condition on the day of the accident, that no repairs were made to it within a period of six months after the accident, and that the stairway was in the same condition six months after the accident as it was prior to the accident. Six months after the accident would be September, 1933. In the statement the witness in effect said some day in May, 1933, that the old oilcloth and nosings had been removed. Thus they had been removed at a time prior to six months after the accident. The statement should have been admitted in evidence. (Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267, 268.) Lazansky, P. J., Young, Carswell, Davis and Taylor, JJ., concur.