McCue v. Bedrich Corp.

Memorandum

Per Curiam.

Judgment in favor of plaintiffs against defendant The Great Atlantic & Pacific Tea Company affirmed, with twenty-five dollars costs. Judgment in favor of plaintiffs against defendant Bedrich Corporation reversed upon the law, with thirty dollars costs to that defendant, and complaint dismissed with appropriate costs in the court below. Judgment dismissing the cross complaint of defendant The Great Atlantic & Pacific Tea Company affirmed, without costs.^*

Plaintiff, a business invitee of the defendant The Great Atlantic & Pacific Tea Company, while leaving the store occupied by said defendant and owned by defendant Bedrich Corporation, sustained injuries when her foot caught in a hole or break in the pavement situated about one foot from the doors leading into and from the store. The situs of the accident is at a point midway between the doors and the window or building line. This partly enclosed area is not a part of the sidewalk proper but is used only as a means of ingress to and egress from the store. It is within the building line and must be deemed part of the premises leased and over which the tenant alone exercised control. Defendant Bedrich Corporation, as the landlord out of possession, was under no duty to the injured plaintiff to maintain that portion of the premises. (Cullings v. Goetz, 256 N. Y. 287.)

Present — MacCrate, McCooey and Steiiíbriiík, JJ.; MacCrate, J., dissents in memorandum as to dismissal of complaint as to defendant Bedrich Corporation.

* The Supreme Court, Appellate Term, Second Department, on December 13,1943, made the following decision in this case: “ The order heretofore entered on the 30th day of November, 1943, is resettled to read as follows: ‘ It is hereby ordered and adjudged that the judgment of the City Court so appealed from be, and the same is, hereby affirmed, and that the plaintiffs recover of the defendant The Great Atlantic & Pacific Tea Company costs of this appeal. Judgment in favor of the plaintiffs against the defendant Bedrich Corporation reversed upon the law, with costs to that defendant, and complaint dismissed with appropriate costs in the court below. Judgment dismissing the cross complaint of defendant The Great Atlantic & Pacific Tea Company affirmed,, without costs. MaoCrate, J., dissents.