Fay v. McNamara

262 A.D. 875, 28 N.Y.S.2d 530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1941
• Status: Published

Opinion

Action by plaintiff wife to recover damages for personal injuries suffered as a result of a carpet, on a movable bandstand appliance or platform and step, slipping under her foot as she stepped on the stand, causing her to fall. Companion action of plaintiff husband for expenses and loss of services. Judgment for plaintiffs reversed on the law and the facts and a new trial granted, with costs to abide the event. The court improperly excluded evidence that there had been no prior accidents and no prior complaints of the bandstand appliance and the carpet covering thereof. (De Salvo v. Stanley-Mark-Strand Corp., 2.81 N. Y. 333, 338; 1 Shearman and Redfield on Negligence [Rev. ed. 1941], § 59, and cases cited.) The plaintiffs were improperly permitted to invoke ordinances requiring a municipal permit for certain forms of platform structures. The movable platform here involved did not come within the purview of such ordinances. These errors were prejudicial on the issue of whether or not the defendants were negligent. Since there must be a new trial, it may be stated that the manner of the parading of alleged cumulative witnesses was error. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.