Miller v. Smith

248 A.D. 762

Opinion

Action to recover damages against the owner of premises for injuries sustained by reason of a fall resulting from slipping upon a defective stair carpet. Judgment of the City Court of Yonkers for plaintiff and order denying motion to set aside the verdict reversed on the law, with costs, and complaint dismissed, with costs. It is conceded that at the time of the happening of the accident and for approximately two months prior thereto a receiver of rents and profits in an action to foreclose a mortgage was in control of the premises. It necessarily follows that the defendant had been divested of possession and control, and it appears without question that the, receiver’s janitor was on the premises and had even endeavored to repair the defect prior to the happening of the accident. The general rule that it is possession and control which are the bases of liability, as distinguished from mere ownership, is applicable. Lazansky, R. J., Young, Hagarty, Davis and Johnston, JJ., concur.