Egerton v. Lavarello , 130 N.Y.S.2d 654 ( 1954 )

Appeal from a judgment rendered in Supreme Court, Albany County. Defendant is a brother-in-law of plaintiff. The proof shows, and the jury could find, that on October 6, 1951, defendant invited the plaintiff to come to his property in Albany to repair a small porch in the rear of the building. Plaintiff testified that defendant walked out on the porch and that plaintiff followed him; the porch “ went through ” and plaintiff fell and was injured. There was an admission attributed to defendant that he did not know he had “ left the stoop weaken so much ”. From the record before it the jury could find that the porch was in a dangerous condition which defendant as its owner and in control of it ought to have known; that the knowledge that it was to be repaired did not necessarily charge plaintiff with a knowledge of the kind of danger that would exist by merely walking on it, especially since it could be found that plaintiff followed defendant on the porch and might be found by the jury to have relied on defendant’s judgment as to its safety for this purpose. We are of opinion that plaintiff was not negligent as a matter of law and that the verdict in his favor is not against the weight of the evidence. Judgment unanimously affirmed, with costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.