Kaplowitz v. Interborough Rapid Transit Co.

New York Supreme Court

Kaplowitz v. Interborough Rapid Transit Co.

53 Misc. 646, 103 N.Y.S. 721

CourtNew York Supreme Court

DecidedApril 15, 1907

StatusPublished

Cited by1 cases

This text of 53 Misc. 646 (Kaplowitz v. Interborough Rapid Transit Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaplowitz v. Interborough Rapid Transit Co., 53 Misc. 646, 103 N.Y.S. 721 (N.Y. Super. Ct. 1907).

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Opinion

Per Curiam:

The judgment should be reversed on the authority of Scholtz v. The Interborough R. T. Co., 48 Misc. Rep. 619; Idel v. Mitchell, 158 N. Y. 134, and Benson v. Manhattan Ry. Co., 31 Misc. Rep. 123. The caso does not come within the authority of Cooley v. Trustees of the N. Y. & B. Bridge, 46 App. Div. 243, as in that case it appeared affirmatively that “ the occasion of the fall was a pile of dirt, composed of earth, banana peelings, cigar stumps, etc., situated on the fifth or sixth step from the bottom of the stairs, and about three inches in depth and eighteen inches long,” and it also appeared affirmatively that defendant’s servant had previous to the accident swept [647]*647the dirt from step to step, an inference being deducible therefrom that the said servant was responsible for said pile of dirt which caused the accident; while in the case at bar the evidence shows that, although there was much dirt upon the stairs, the plaintiff fell on a piece of tobacco; and there is nothing to indicate that the said tobacco had been there a sufficient length of time to impute notice to defendant.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Gildersleeve, Giegerich and Erl auger, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Per Curiam:

The judgment should be reversed on the authority of Scholtz v. The Interborough R. T. Co., 48 Misc. Rep. 619; Idel v. Mitchell, 158 N. Y. 134, and Benson v. Manhattan Ry. Co., 31 Misc. Rep. 123. The caso does not come within the authority of Cooley v. Trustees of the N. Y. & B. Bridge, 46 App. Div. 243, as in that case it appeared affirmatively that “ the occasion of the fall was a pile of dirt, composed of earth, banana peelings, cigar stumps, etc., situated on the fifth or sixth step from the bottom of the stairs, and about three inches in depth and eighteen inches long,” and it also appeared affirmatively that defendant’s servant had previous to the accident swept [647]*647the dirt from step to step, an inference being deducible therefrom that the said servant was responsible for said pile of dirt which caused the accident; while in the case at bar the evidence shows that, although there was much dirt upon the stairs, the plaintiff fell on a piece of tobacco; and there is nothing to indicate that the said tobacco had been there a sufficient length of time to impute notice to defendant.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Gildersleeve, Giegerich and Erl auger, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

53 Misc. 646, 103 N.Y.S. 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplowitz-v-interborough-rapid-transit-co-nysupct-1907.

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