Kleinert v. Webb & Knapp, Inc. , 201 N.Y.S.2d 235 ( 1960 )

Judgment and decision after trial in personal injury negligence action unanimously modified, on the law and the facts, to reverse the dismissal of the complaint against defendant Isidore Rosen & Sons, Inc., and to grant judgment in favor of plaintiff against such defendant, with costs to plaintiff, and the judgment is otherwise unanimously affirmed, with costs to third-party defendant-respondent Armor Elevator Co., Inc., against third-party plaintiff-appellant Webb & Knapp Construction Corp. and, with costs to plaintiff against defendants-appellants Webb & Kinapp, Inc., and Webb & Knapp Construction Corp. The credible evidence establishes that the proximate cause of the accident was mortar dropped into the shaftway by defendant Rosen. This is shown by the records kept of the work done by the various trades on the day of the accident. The testimony of the witness Beck with respect to planking at the top of the shaftway related only to planking used to supply a support for the elevator men and was not shown to be the kind of tight cover designed to protect the workers below. On the whole record it is eminently clear that the only probable source of the mortar was from the work of the brick mason, Rosen. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, Valente and McNally, JJ.