Relihan v. Felson

Heffernan, J. Defendant is the owner of a four-family house, consisting of two apartments on the first floor and two [78] on the second floor located on the corner of Victory Avenue and Mynderse Street in the city of Schenectady, N. Y. Plaintiffs, husband and wife, occupied one of the apartments on the second floor facing Mynderse Street. They had been in possession of these premises for more than a year prior to May 25,1943, upon which date the wife was injured. The other apartment on the same floor facing Victory Avenue was occupied by Mr. and Mrs. Dieterich. In the rear, of-the dining room "of plaintiffs’ apartment there is a door which leads into a hallway which separates the two apartments. From the hallway there are two stairways, one leading to Victory Avenue and the other to the attic floor of the building. The hall was partially covered by a floor mat. On May 25, 1943, while Mrs. Belihan was visiting Mrs. Dieterich she was requested by the latter to ascertain if there was any mail in the Dieterich mailbox. In compliance with this request Mrs. Belihan was about to descend the stairway when she stumbled and fell on the floor mat on the landing at the top of the stairs and sustained somewhat serious injuries. As a result she instituted this action to recover damages for her personal injuries and her husband’s suit is predicated upon the loss of his wife’s services and the expense to which he was put in connection with her treatment and care. At the close of the plaintiffs’ proof the trial court granted defendant’s motion for a nonsuit and a dismissal of the complaint, to which rulings plaintiffs excepted and from which plaintiffs have come to this court. In reviewing the rulings of the trial court the appellants are entitled not only to the most favorable interpretation of the testimony adduced by them, but to the benefit, as well, of the most favorable inferences to be drawn from that testimony; and judgment of nonsuit may not be sustained in any case in which, by any logical process of reasoning, an issue of fact may be found. We think questions of fact are presented for submission to and determination by a jury and that the rulings of the trial court cannot be sustained. At the time plaintiffs rented the premises defendant expressly authorized the wife to use this hallway as an approach to a rear porch for convenience in handling the family laundry. Defendant reserved to himself, or so a jury might have found,1 control of this hallway and the stairway leading thereto from ¡ Victory Avenue and also of the stairway leading to the attic in which he kept a thermostat. On the record before us a [79] jury would be justified in concluding that defendant retained control and possession of the landing and the stairway so as to make himself liable for their safe condition. As a matter of fact the proof discloses that he retained a key to the Victory Avenue entrance so that he might enter and leave the premises at will. The uncontradicted evidence is that he used this means of ingress and egress at least weekly. The latest pronouncement of the Court of Appeals on this subject, Antonsen v. Bayridge Savings Bank (292 N. Y. 143), requires that the question as to the extent of defendant’s reservation and control over these premises be determined by a jury. The evidence in the record is also sufficient to warrant a jury in finding that the mat on which the wife fell was not properly affixed to the floor, was torn and defective and that defendant knew, or should have known, in the exercise of reasonable care, that it constituted a dangerous obstruction to persons lawfully using the hallway arid stairway. The judgments appealed from should be reversed on the law and a new trial granted, with costs to appellants to abide the event.