Weinert v. Downey

In an action by an infant to recover damages for personal injuries and by his father to recover damages for medical expenses and loss of services, the appeal is from a judgment entered on a jury verdict in their favor. Appellant is the owner of a two-family house in which the infant resides with his father, the lessee of an apartment therein. The infant is alleged to have been injured when he was struck in the eye with a thorny branch of a “ rambler or climbing rose bush”, which overhung a stairway in the rear of the dwelling. Judgment affirmed, with costs. A jury question was presented (Wilson v. City of New Rochelle, 285 App. Div. 1059, motion for leave to appeal denied 308 N. Y. 1054). Beldock, Acting P. J., Murphy, Hallinan and Kleinfeld, JJ., concur; Ughetta, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: I fail to see any negligence whatsoever in a landlord’s maintaining a rose bush in the yard of a rented house. The infant, aged 9, ran into the rose bush while playing tag with his brother, aged 11. I discern no analogy between the case of a landlord of a veterans’ housing project which maintained a children’s playground and permitted it to become littered with debris over a period of years (Wilson v. City of New Rochelle, 285 App. Div. 1059, motion for leave to appeal denied 308 N. Y. 1054 [relied on by the majority]), or the case of a person who permitted a dangerous piece of discarded machinery to remain in a yard (Sarapin v. S. & S. Corrugated Paper Mach. Co., 209 App. Div. 377), and the ease here presented, where the landlord had a rose bush growing in the back yard.