O'Hara v. Mullin

Appellate Division of the Supreme Court of New York

O'Hara v. Mullin

257 A.D. 1000, 13 N.Y.S.2d 725, 1939 N.Y. App. Div. LEXIS 8872

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

DecidedJune 27, 1939

StatusPublished

This text of 257 A.D. 1000 (O'Hara v. Mullin) 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

O'Hara v. Mullin, 257 A.D. 1000, 13 N.Y.S.2d 725, 1939 N.Y. App. Div. LEXIS 8872 (N.Y. Ct. App. 1939).

Pincite

Opinion

An infant, while on a public sidewalk in the city of Yonkers, was struck by a cover of a scuttle opening to the roof of an adjoining dwelling owned and occupied by the defendant. From a judgment rendered in favor of defendant against a guardian ad, litem, suing on behalf of the infant, and the latter’s father, suing' for expenses and loss of services, plaintiffs appeal. Judgment unanimously affirmed, with costs. A question of fact was fairly presented for consideration of the jury as to whether or not an unusual velocity of wind blew the lid from the roof and whether or not the lid and the curbing which it covered were properly constructed and maintained. Although it would have been proper to have permitted the plaintiffs to go to the jury on both the theories of nuisance and negligence, no substantial error was committed in presenting the case to the jury on the latter theory, for the learned trial justice in his charge presented all the issues and contentions which might have been advanced under the nuisance theory. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ.

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An infant, while on a public sidewalk in the city of Yonkers, was struck by a cover of a scuttle opening to the roof of an adjoining dwelling owned and occupied by the defendant. From a judgment rendered in favor of defendant against a guardian ad, litem, suing on behalf of the infant, and the latter’s father, suing' for expenses and loss of services, plaintiffs appeal. Judgment unanimously affirmed, with costs. A question of fact was fairly presented for consideration of the jury as to whether or not an unusual velocity of wind blew the lid from the roof and whether or not the lid and the curbing which it covered were properly constructed and maintained. Although it would have been proper to have permitted the plaintiffs to go to the jury on both the theories of nuisance and negligence, no substantial error was committed in presenting the case to the jury on the latter theory, for the learned trial justice in his charge presented all the issues and contentions which might have been advanced under the nuisance theory. Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ.

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Bluebook (online)

257 A.D. 1000, 13 N.Y.S.2d 725, 1939 N.Y. App. Div. LEXIS 8872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohara-v-mullin-nyappdiv-1939.