Alfino v. Manufacturers Trust Co. ( 1944 )

Action to recover damages for personal injuries suffered by plaintiff wife in a fall in the basement of defendants’ two-family house, and by plaintiff husband for expenses and loss of services. Judgment, entered on the verdict of a jury in favor of plaintiffs, reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. We hold as matter of law that the defendants are not liable for the accident which occurred during the performance of work delegated by their tenant-janitor without their knowledge, in a portion of the building open to tenants only at the tenants’ own risk. (Gurry v. Addoms, 166 App. Div. 433; Wo era v. Bosenfeld, 195 App. Div. 19, affd. 232 N. Y. 625.) In any event we would be required to grant a new trial on the law and the facts because the verdict, insofar as it implies a finding of plaintiff wife’s freedom , from contributory negligence is contrary to the evidence; and it was error to have refused some of the defendants’ requests to charge. Hagarty, Johnston and Adel, JJ., concur; Close, P. J., and Aid-rich, J., concur for reversal of the judgment but dissent from dismissal of the complaint and vote for a new trial, with the following memorandum: The question of the contributory negligence of plaintiff Rosalie Alfino was for the jury. We vote for a new trial in the interest of justice. Upon another trial the evidence as to whether or not the janitorial work was to be performed exelusively by plaintiff Frank Alfino, or by himself and other members of his family, may be clarified.