Behan v. Ivanhoe Co.

Action to recover damages for injuries suffered by plaintiff wife as a consequence of her fall from a window of an apartment in defendant’s multiple dwelling house. She alleged that her fall was due to defendant’s negligence because a sash of a window was so stuck that it fell abruptly following her exertion of force while trying to open it in the course of her work in cleaning the window glass. Companion action by plaintiff husband for loss of services and for expenses. Judgment for plaintiffs unanimously affirmed, with costs. At the close of the entire case the defendant failed to move to dismiss on the ground that it had not been established that the defendant was negligent. It thereby conceded that there was a jury question in respect of its negligence and may not now be heard to assert the contrary. (Luechinger v. Eichhammer, 236 N. Y. 556, 557.) On this issue the plaintiffs were entitled to the benefit of the proof adduced by the defendant. (Tumulty v. New York, New Haven & H. R. R. Co., 224 App. Div. 131, 136.) The only question which survives for review on this record relates to the issue of contributory negligence. The proof presented a jury question on that phase. (Weiss v. Wallach, 256 App. Div. 354.) Present — Hagarty, Carswell, Johnston, Taylor and Close, JJ.