Masliach v. Schriefer

264 A.D. 786, 34 N.Y.S.2d 908, 1942 N.Y. App. Div. LEXIS 4729

Opinion

Appeal by defendant from a judgment in favor of the infant plaintiff for personal injuries suffered by her, and in favor of her father for loss of services and medical attention. The infant plaintiff testified that her injuries were caused by tripping over a defective saddle at the door leading from the porch into the inner hallway of a multiple family dwelling owned by the defendant. The claimed defect is that the saddle was broken, unrepaired, worn out and in an unsafe condition. The photographs offered in evidence demonstrate that the outer edge or nose of the saddle was worn down irregularly, and at the point where the infant plaintiff alleges she slipped there was a small crack in the stone. There is no evidence that her foot was caught or that anything in the nature of a trap existed. The only claim is that the saddle was dangerous and defective because it was worn down. There was no proof of any previous accident. Under the circumstances, no actionable negligence was established. (Balastiere v. Lovecchio, 260 App. Div. 1030; Charanis v. Macy & Co., Inc., 257 id. 980.) Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.