Cornell v. Feltman

Appeal from an order of County Court, Albany County, affirming a judgment of the City Court of Albany. Defendants owned a building containing three flats. Plaintiff rented the middle one. She offered proof which has not been contradicted by defendants that the boards on the outside of the building in front of and over the windows of plaintiff’s apartment were rotted; that there were “pieces out of the side and out of the front”; that when it rained the ceiling of plaintiff’s apartment “ was wet all along the east side ” and “ there were stains on the ceiling and very damp it was ”; and that the walls in the flat above plaintiff were damp near the baseboard “ practically all the time ”. There was proof also uncontradicted, that this condition was called to the attention of the owners. On April 21, 1952, the ceiling in plaintiff’s quarters fell on her while she was sitting on a couch in her front room and she was injured. After a trial in the City Court of Albany the jury rendered a verdict for defendants and the judgment entered on the verdict has been affirmed by the County Court. We do not regard the testimony as to causation so conclusive as to have authorized a direction of a verdict for the plaintiff in the sense in which the uneontradieted evidence was treated by the court in Gniehtel v. Stone (233 N. Y. 465). No motion was made here for such a direction and we think that in any event the case ought to have gone to the jury. But in the light of the fact that defendants in renting parts of this building to different tenants retained control of the outside walls and the uncontradicted proof of physical conditions which could reasonably be found to have caused the ceiling to fall, the verdict was 991 against the weight of the credible evidence (Locicero v. Messina, 239 App. Div. 635). Order of the County Court and the judgment of the City Court reversed, on the facts, and a new trial ordered, with costs to appellants to abide the result. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.