O'Neil v. Foley , 1958 N.Y. App. Div. LEXIS 5810 ( 1958 )

Appeal from an order of the Supreme Court, Special Term, St. Lawrence County, which denied the motion of defendant McCabe to dismiss, as to him, the complaint in a negligence action, as insufficient on its face. A motion addressed to this same complaint by other defendants was denied and an appeal from the order of denial decided at this term. (6 A D 2d 739.) Plaintiff seeks to recover for personal injuries sustained while attending a firemen’s field day, when he fell into a hole which had been excavated in the dirt floor of an airport hangar to accommodate a counterweight attached to the overhead door of the hangar. The complaint alleges that the hole was dug by defendant-appellant and others prior to the field day; that he knew it was in existence and was unsafe, a nuisance and a trap when he and others leased the premises to the members and officials of a fire department for the purposes of the field day; and that he was in occupation and possession of the premises at all the times mentioned in the complaint, which included the time of plaintiff’s accident. Appellant characterizes as inconsistent with these averments, certain other allegations upon which are predicated plaintiff’s charges of negligence against the members and officers of the fire department and urges that these latter allegations infer that appellant had surrendered dominion and control of the premises to the firemen and on that account is entitled to a dismissal. We find no basis for the inference asserted. Appellant’s continued occupation and possession are specifically alleged. Even if appellant’s theory of the pleading were sound, however, appellant would still be liable, if there existed, when he rented the premises for public use, a dangerous condition known to him or discoverable upon reasonable inspection. (Junkerman v. Tilyou Realty Co., 213 N. Y. 404). Order unanimously affirmed, with $10 costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.