Wank v. Herman

2 A.D.2d 867, 156 N.Y.S.2d 161, 1956 N.Y. App. Div. LEXIS 4137

Opinion

Action to recover damages for personal injuries alleged to have been sustained by respondent’s intestate when he fell down a stairway in a multiple dwelling owned by appellants and in which said intestate was a tenant. The appeal is from a judgment directed in favor of respondent after trial by the court without a jury. The trial court found that lack of adequate light, of which appellants had actual notice, was the proximate cause of the accident. Judgment unanimously affirmed, with costs. On this record, a question of fact was presented for determination by the trial court (Multiple Dwelling Law, § 37; Swain v. Gianone, 282 App. Div. 966). Respondent’s intestate had died between the time of his examination before trial by appellants and the trial. It was not error to permit respondent to read in evidence portions of such examination, which examination had not previously been offered in evidence "by appellants, the examining parties (Civ. Prac. Act, § 303; Berdell v. Berdell, 86 N. Y. 519; Kaufman v. Abramson & Co., 248 App. Div. 628). Present — Nolan, P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ.