Grill v. Gutfreund

Giegerich, J. The complaint, as amended at the trial, alleges that the defendant, at the time in question, was the owner of certain premises in the city of Hew York, and that the plaintiff, while lawfully upon one of the fire escapes of the building, at the invitation of the defendant, sustained injuries through the falling of the fire escape, which was in a defective and dangerous condition to the defendant’s knowledge. From the opening of plaintiff’s case, it appeared that the facts were that the defendant, desiring to remove certain fire escapes from his building, went to one Crowley and asked for an estimate upon the cost of taking them down, and that Crowley went to the plaintiff and sent him there to look at the fire escapes and see what the cost would be, and that it was while so engaged that he was injured by the fall of the fire escape upon which he had stepped for the purpose of making an examination. If this had been all that the plaintiff offered to prove, the dismissal of the complaint might have been proper, upon the theory that fire escapes are provided for use in case of fire, and that the landlord is only liable for injuries sustained while they are being used for the purpose for which they were designed. Mayer v. Laux, 18 Misc. Rep. 671, McAlpin v. Powell, 70 N. Y. 126. But the plaintiff further offered to prove that it was * necessary to go upon the fire escape in order to make the-examination required before an estimate of the cost of the work could be given, and that he, the plaintiff, had no knowledge that the supports of the fire escape were old, worn out or corroded. If this could have been proved, I think the defendant would have been liable, and we are bound to assume that the plaintiff could have proved it. Clews v. Bank of N. Y. Nat. Banking Assn., 105 N. Y. 398. If it be the fact that it was necessary to go upon the fire escape in order to make the estimate which the defendant [508] had requested from Crowley, it must be held that, if Crowley had gone upon the fire escape for that purpose, he would have been there at the defendant’s invitation. And, if the defendant, knowing the condition of the fire escape, invited Crowley to go upon it without warning, he would undoubtedly have been liable if Crowley had gone upon it and had been injured by its fall. It cannot be assumed, however, that the invitation to Crowley was purely a personal one. If not, any servant whom Crowley might properly have sent would have been on the premises by the defendant’s invitation quite as much as Crowley himself would have been. Coughtry v. Globe Woolen Co. 56 N. Y. 124, 126; Burke v. Ireland, 26 App. Div. 487, 492; Dougherty v. Weeks & Son, 126 id. 786,789. I do not know that it would make any difference in the plaintiff’s case if, instead of being an agent or servant of Crowley, he had been himself an independent contractor and had dealt with Crowley as such; nor is it necessary to pass upon that question. The plaintiff’s statement of the case was that he had been sent there by Crowley and that he went to the premises and commenced his examination-pursuant to instructions. The inference that he was acting as the agent or servant of Crowley would be warranted, if necessary to his cause of action. Higgins v. Eagleton, 155 N. Y. 466, 471. The judgment must be reversed and a new trial ordered, with costs t-o appellant to abide the event. Goff, J., concurs.