McEntyre v. Bickford's, Inc.

Appellate Division of the Supreme Court of New York

McEntyre v. Bickford's, Inc.

261 A.D. 834, 25 N.Y.S.2d 992, 1941 N.Y. App. Div. LEXIS 7669

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

DecidedJanuary 20, 1941

StatusPublished

This text of 261 A.D. 834 (McEntyre v. Bickford's, Inc.) 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

McEntyre v. Bickford's, Inc., 261 A.D. 834, 25 N.Y.S.2d 992, 1941 N.Y. App. Div. LEXIS 7669 (N.Y. Ct. App. 1941).

Pincite

Opinion

In an action to recover damages for wrongful death through the alleged negligence of the defendant when plaintiff’s intestate stumbled on the sidewalk and fell into a cellarway in the public sidewalk adjacent to the premises No. 46-04 Queens boulevard, Queens county, plaintiff was nonsuited. Defendant was the lessee of the store and cellar and in possession and control of the cellarway, which was covered with two iron doors. Both doors were open at the time of the accident. It was incumbent upon the defendant to show that the cellarway was in actual use for the ingress or egress of persons or for the loading or unloading of things out of or into the cellar at the time of the accident, as permitted by the ordinance, and that the condition did not result from its own act but from that of some stranger or intruder, or otherwise to exonerate itself. (Diamond v. S. C. S. Garage, Inc., 251 App. Div. 825.) Judgment dismissing the complaint at the close of plaintiff’s case reversed on the law, and a new trial granted, with costs to appellant to abide the event. No order dismissing the complaint is printed in the record. The appeal from such order is,¡¡therefore, dismissed, without costs. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

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In an action to recover damages for wrongful death through the alleged negligence of the defendant when plaintiff’s intestate stumbled on the sidewalk and fell into a cellarway in the public sidewalk adjacent to the premises No. 46-04 Queens boulevard, Queens county, plaintiff was nonsuited. Defendant was the lessee of the store and cellar and in possession and control of the cellarway, which was covered with two iron doors. Both doors were open at the time of the accident. It was incumbent upon the defendant to show that the cellarway was in actual use for the ingress or egress of persons or for the loading or unloading of things out of or into the cellar at the time of the accident, as permitted by the ordinance, and that the condition did not result from its own act but from that of some stranger or intruder, or otherwise to exonerate itself. (Diamond v. S. C. S. Garage, Inc., 251 App. Div. 825.) Judgment dismissing the complaint at the close of plaintiff’s case reversed on the law, and a new trial granted, with costs to appellant to abide the event. No order dismissing the complaint is printed in the record. The appeal from such order is,¡¡therefore, dismissed, without costs. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.

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Bluebook (online)

261 A.D. 834, 25 N.Y.S.2d 992, 1941 N.Y. App. Div. LEXIS 7669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcentyre-v-bickfords-inc-nyappdiv-1941.

Opinion

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