Buono v. W. J. I. Building Corp.

Order denying motions of the appealing defendants for judgment on the pleadings affirmed, with ten dollars costs and disbursements. The plaintiff on a motion of this character, where he has pleaded in the alternative, may have the benefit only of the lesser allegation respecting liability. Ordinarily, it may be that liability to one situated as is the plaintiff may not be predicated on the theory of constructive notice of his presence on the property. Nevertheless, the trial may develop facts that Would east upon the defendants the duty of refraining from throwing a plank into the alley in disregard of whether or not the plaintiff or others like him were in the alley if it were used to the knowledge of the defendants by children such as the plaintiff. In other words, peculiar circumstances may make applicable the doctrine of constructive notice in a manner which 765 may permit a holding that that which the defendants did was a willful act and, therefore, a breach of duty owing even to a licensee. (Mendelowitz v. Neisner, 258 N. Y. 181, 183; Sicklick v. Schasseur, 221 App. Div. 742, 746; Johansson v. Kemp, 211 id. 276, 278.) That question may not be decided upon mere pleadings. It must await the trial. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.