Kowalchick v. Reshin

146 Misc. 770, 262 N.Y.S. 808, 1933 N.Y. Misc. LEXIS 958

Opinion

Per Curiam.

The manifest purpose of the ordinance (Code of Ordinances, chap. 23, § 164) was to protect travelers on the sidewalk from falling into an open cellar entrance by providing adequate safeguards to warn them of danger. The ordinance was not intended to require the owner of the building to erect barriers to keep those who were fully aware of the presence of the opening from approaching it. (Greenberg v. Schlanger, 229 N. Y. 120; Olsen v. Fennia Realty Co., 246 id. 641; Swartzman v. Socol Realty Co., 233 App. Div. 374.) Since the record reveals that the infant plaintiff knew that the cellar door was open and that she attempted to jump over it, the defendant was under no duty to protect her from the particular hazard which ensued.

Judgment reversed, with thirty dollars costs, and complaint dismissed upon the merits, with costs.

All concur; present, Lydon, Frankenthaler and Untermyer, JJ.