Dinegar v. Sweeney , 300 N.Y.S. 1202 ( 1937 )

Appeal from an order setting aside the verdict in favor of the plaintiff, and the judgment entered thereon. Plaintiff was injured on May 19, 1936, by falling on an outside cement stairway, consisting of nine steps, leading from the sidewalk level to a restaurant in the basement of defendant’s hotel. The evidence indicates that plaintiff slipped upon a leaf which had fallen from an elm tree, in a rain storm which was accompanied by wind. The evidence indicates that a limited number of leaves had fallen upon the stairs. Negligence on the part of defendant is not shown. A sufficient time had not elapsed to establish constructive notice. Plaintiff did not use the handrail. These were outside stairs, properly constructed, and the condition was obvious. Order and judgment affirmed, with costs. Hill, P. J., McNamee and Crapser, JJ., concur; Rhodes and Bliss, JJ., dissent.