Gardner v. Roosevelt Hotel, Inc.

176 Misc. 546, 28 N.Y.S.2d 78, 1941 N.Y. Misc. LEXIS 1838

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 13, 1941
• Status: Published

Opinion

Per Curiam.

Defendant hotel was not liable as an innkeeper, and the questions of negligence, contributory negligence and assumption of risk were for the jury. The direction of verdict was improper under section 457-a of the Civil Practice Act, as amended. Under the General Business Law the place where the coat was checked constituted a “ check room,” but the question of whether liability was limited may not be raised for the first time on appeal. Evidence and decision on that point will be left to the court below on the new trial. (See Honig v. Riley, 244 N. Y. 105.)

Judgment reversed and new trial ordered, with costs to appellants to abide the event. Appeal from orders dismissed.

All concur. Present — Hammer, Shientag and McLaughlin, JJ.