Horowitz v. Bandler

Appellate Division of the Supreme Court of New York

Horowitz v. Bandler

268 A.D. 1054, 52 N.Y.S.2d 464, 1945 N.Y. App. Div. LEXIS 5470

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 1945

StatusPublished

Cited by1 cases

This text of 268 A.D. 1054 (Horowitz v. Bandler) 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.

Bluebook

Horowitz v. Bandler, 268 A.D. 1054, 52 N.Y.S.2d 464, 1945 N.Y. App. Div. LEXIS 5470 (N.Y. Ct. App. 1945).

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Opinion

Action to recover damages for wrongful death. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. The court erred in its charge at folio 759, which error was prejudicial, misleading and confusing and was duly excepted to. It also erred in the refusal to charge at folio 773. It likewise erred in its refusal to charge at folio 775, which ruling was duly excepted to. The request was that there was no duty imposed by law on the appellant to remove the snow and ice. This request should have been granted. (Connolly v. Bursch, 149 App. Div. 772.) The court erroneously assumed that it had covered the subject matter of the request in its main charge. The main charge did not make clear that under the proof in this case the appellant could not be held liable for his acts in removing the recently fallen snow from the sidewalk. (Connolly v. Bursch, supra.) The charge did not make pointedly clear that the appellant could only be held liable for creating a dangerous condition in respect of the old ice as a consequence of his negligently removing a portion of the ice or leaving pieces of the ice on the sidewalk, with [1055]*1055the consequence that such dangerous condition caused the plaintiff's decedent to fall. (Balding v. Eich, 23 App. Div. 179.) Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ., concur.

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Action to recover damages for wrongful death. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. The court erred in its charge at folio 759, which error was prejudicial, misleading and confusing and was duly excepted to. It also erred in the refusal to charge at folio 773. It likewise erred in its refusal to charge at folio 775, which ruling was duly excepted to. The request was that there was no duty imposed by law on the appellant to remove the snow and ice. This request should have been granted. (Connolly v. Bursch, 149 App. Div. 772.) The court erroneously assumed that it had covered the subject matter of the request in its main charge. The main charge did not make clear that under the proof in this case the appellant could not be held liable for his acts in removing the recently fallen snow from the sidewalk. (Connolly v. Bursch, supra.) The charge did not make pointedly clear that the appellant could only be held liable for creating a dangerous condition in respect of the old ice as a consequence of his negligently removing a portion of the ice or leaving pieces of the ice on the sidewalk, with [1055]*1055the consequence that such dangerous condition caused the plaintiff's decedent to fall. (Balding v. Eich, 23 App. Div. 179.) Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ., concur.

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Bluebook (online)

268 A.D. 1054, 52 N.Y.S.2d 464, 1945 N.Y. App. Div. LEXIS 5470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horowitz-v-bandler-nyappdiv-1945.

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