Schwartz v. Monday

49 Misc. 527, 97 N.Y.S. 978

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1906
• Status: Published

Opinion

Greenbaum, J.

The only testimony, hearing on the defendant’s knowledge of the defective condition of the roof where the accident resulting in plaintiff’s injuries occurred, is that of the plaintiff’s son-in-law. This witness testifies that, two or three weeks prior to the date of the accident, some slats on the roof were loose and that he notified defendant of the fact. He fails, however, to indicate the part of the roof where he found the loose slats, or to identify the particular slat which caused the accident as one of those to which he called defendant’s attention, .though he was at the scene of the accident immediately thereafter and was in a 'position to so identify it if such were the fact. His testimony is, therefore, insufficient to charge defendant with knowledge of the particular defective slat which caused the injury. Henkel v. Murr, 31 Hun, 28; Dollard v. Roberts, 130 N. Y. 269.

It was defendant’s duty to keep the roof in a reasonably "safe condition, and the measure of this duty was reasonable care and prudence. Alperin v. Earle, 55 Hun, 211; Dollard v. Roberts, supra.

The defendant fully met the obligation thus imposed upon her by uncontradicted evidence showing that the premises, including the roof and the wash deck, were examined every month by a carpenter in her employ who had repaired the roof and examined all the slats thereon on or about May 10, 1905, about four weeks before the accident occurred.

In my opinion, the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scott, J., concurs; Giegerioh, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.