McCabe v. Cohen

268 A.D. 1064, 52 N.Y.S.2d 903

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1945
• Status: Published

Opinions

Memorandum 'by the Court. The case was tried on the theory that sections 564-15.0 and C26-193.0 of the Administrative Code of the City of New York applied to the facts here involved. With that theory we are in accord. In any event, no proper exception was taken to the charge in that connection and, therefore, it became the law of the case. The case was also submitted to the jury on the theory that appellant was liable for the maintenance of a statutory nuisance even after conveyance, by appellant of title to the property, provided nothing occurred between the time of the conveyance and the happening of the accident to change the condition which existed at the time of the conveyance. No exception was taken to this portion of the charge and that, too, became the law of the case. Further, the jury could find under the charge, as amplified at folios 1533-1534, that the stairway involved was a nuisance under the statute referred to and that sufficient time had not elapsed for the vendee to inspect and remedy the defect. Under such circumstances, appellant is liable even after conveyance. (Pharm v. Lituchy, 283 N. Y. 130.) The jury exonerated the vendee. It is “ abhorent to our notions of justice to relieve the vendor before fixing liability on the vendee.” (Kilmer v. White, 254 N. Y. 64, 71.) The theories urged by our dissenting brethren for reversal were not urged upon the trial and may not be advanced in this court. (Sterrett v. Third Nat. Bank of Buffalo, 122 N. Y. 659, 661, 662.)

Judgment, entered pursuant to the verdict of the jury, and order denying appellant’s motion to set aside the verdict and for a new trial, affirmed, with costs.