Rothlein v. Stajer

Appellate Terms of the Supreme Court of New York

Rothlein v. Stajer

88 N.Y.S. 921

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1904

StatusPublished

Cited by1 cases

This text of 88 N.Y.S. 921 (Rothlein v. Stajer) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rothlein v. Stajer, 88 N.Y.S. 921 (N.Y. Ct. App. 1904).

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Opinion

MacLEAN, J.

An infant, not four years of age, while playing in. the street unaccompanied by any -person, was struck by another child in the face, and on being so. struck placed his hands over his eyes, retreating towards thé house, and there fell backward down an open cellarway. This action is based upon the alleged negligence of the defendant in not providing proper banisters and railings on the cellar stairway, as required by section 36 of the tenement house act (Laws 1901, p. 889, c. 334). There was evidence to show that the doors were so constructed as to guard, when open, the sides of the cellarway, and that the absence of banister and railing therefrom in' no wise contributed to the accident; and it may not be that negligence must be predicated upon their absence from and across the entrance to the stairway, for this would read into the act what is not there expressly stated or by reasonable intendment to be included, and be an unjustifiable extension of its provisions. Negligence on the part of the defendant not appearing, the judgment must be affirmed.

Judgment affirmed, with costs to the respondent. All concur.

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MacLEAN, J.

An infant, not four years of age, while playing in. the street unaccompanied by any -person, was struck by another child in the face, and on being so. struck placed his hands over his eyes, retreating towards thé house, and there fell backward down an open cellarway. This action is based upon the alleged negligence of the defendant in not providing proper banisters and railings on the cellar stairway, as required by section 36 of the tenement house act (Laws 1901, p. 889, c. 334). There was evidence to show that the doors were so constructed as to guard, when open, the sides of the cellarway, and that the absence of banister and railing therefrom in' no wise contributed to the accident; and it may not be that negligence must be predicated upon their absence from and across the entrance to the stairway, for this would read into the act what is not there expressly stated or by reasonable intendment to be included, and be an unjustifiable extension of its provisions. Negligence on the part of the defendant not appearing, the judgment must be affirmed.

Judgment affirmed, with costs to the respondent. All concur.

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Bluebook (online)

88 N.Y.S. 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rothlein-v-stajer-nyappterm-1904.

Opinion

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