Montalto v. Church of Our Lady of Grace

Appellate Division of the Supreme Court of New York

Montalto v. Church of Our Lady of Grace

16 A.D.2d 614, 226 N.Y.S.2d 339, 1962 N.Y. App. Div. LEXIS 10562

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

DecidedApril 3, 1962

StatusPublished

This text of 16 A.D.2d 614 (Montalto v. Church of Our Lady of Grace) 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

Montalto v. Church of Our Lady of Grace, 16 A.D.2d 614, 226 N.Y.S.2d 339, 1962 N.Y. App. Div. LEXIS 10562 (N.Y. Ct. App. 1962).

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Opinions

Appeal, by permission of the Appellate Term of the Supreme Court in the First Judicial Department, from a determination of said court, entered June 22, 1961 which affirmed a judgment of the City Court of the City of New York, New York County, in favor of plaintiff.

Memorandum by the Court. Determination of the Appellate Term affirming a judgment in plaintiff’s favor in the City Court of the City of New York, New York County, affirmed, with costs to respondent. The complaint in this action alleged that defendant negligently allowed a rug “to become worn, defective and unsafe” and plaintiff “was caused to fall and sustain serious injuries ”. Similar statements as to the condition of the rug were repeated in the bill of particulars. Upon the nonjury trial, a sharp issue of fact was presented as to whether plaintiff was caused to fall by catching her foot in a torn or broken hole in the rug or by slipping thereon. The one witness called by defendant denied there was any tear “ two inches long ” in the rug but volunteered that “the strings were beginning to go very slightly”. It is not clear whether the witness was referring to the warp or woof of the rug or the fringe thereon. In any event defense counsel had the rug in court and did not offer it in evidence. The proof presented a fair question of fact and we conclude that the finding of the trial court upon this issue was not contrary to the evidence or the law.

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Appeal, by permission of the Appellate Term of the Supreme Court in the First Judicial Department, from a determination of said court, entered June 22, 1961 which affirmed a judgment of the City Court of the City of New York, New York County, in favor of plaintiff.

Memorandum by the Court. Determination of the Appellate Term affirming a judgment in plaintiff’s favor in the City Court of the City of New York, New York County, affirmed, with costs to respondent. The complaint in this action alleged that defendant negligently allowed a rug “to become worn, defective and unsafe” and plaintiff “was caused to fall and sustain serious injuries ”. Similar statements as to the condition of the rug were repeated in the bill of particulars. Upon the nonjury trial, a sharp issue of fact was presented as to whether plaintiff was caused to fall by catching her foot in a torn or broken hole in the rug or by slipping thereon. The one witness called by defendant denied there was any tear “ two inches long ” in the rug but volunteered that “the strings were beginning to go very slightly”. It is not clear whether the witness was referring to the warp or woof of the rug or the fringe thereon. In any event defense counsel had the rug in court and did not offer it in evidence. The proof presented a fair question of fact and we conclude that the finding of the trial court upon this issue was not contrary to the evidence or the law.

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Bluebook (online)

16 A.D.2d 614, 226 N.Y.S.2d 339, 1962 N.Y. App. Div. LEXIS 10562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montalto-v-church-of-our-lady-of-grace-nyappdiv-1962.