Opinion
June 5, 1967
In an action to recover damages for personal injuries, plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Kings County, dated April 6, 1966, as is in favor of defendant against her, upon the trial court's dismissal of the complaint at the end of plaintiff's case upon a jury trial. Judgment reversed insofar as it is in favor of defendant against plaintiff, on the law; new trial granted as between said parties, with costs to abide the event; and action severed accordingly. No questions of fact have been considered. It is true that subdivision 1 of section 293 Lab. of the Labor Law does not specifically include the word "repair" in promulgating that the owner of a tenant-factory building should provide and maintain, for factory employees, suitable and convenient washroom facilities. However, there are several factors which impel us to reverse the trial court's reading of the statute. The legislative history of an analogous provision, section 295 Lab. of the Labor Law, reveals that the Legislature incorporated "repair" into the statutory provision requiring "maintenance" of toilets. The New York State Board of Standards and Appeals adopted a regulation pursuant to sections 293 Lab. and 295 Lab. of the Labor Law which requires the owner as well as the tenant to maintain in good repair both toilets and washrooms (12 [A] NYCRR 9.14[a]). Finally, in City of New York v. Dry Dock, East Broadway Battery R.R. Co. ( 135 Misc. 678 [Sup. Ct., New York County, 1927], affd. 225 App. Div. 794 [1st Dept. 1929], affd. 251 N.Y. 583), the court interpreted an analogous provision as to "use or maintain" in section 178 R.R. of the Railroad Law as broadening the statute so as to impose a liability for failure to repair. Brennan, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur. [ 49 Misc.2d 287.]