Opinion
December, 1906.
Frank Vernor Johnson, for appellant.
Samuel S. Koenig, for respondent.
Defendant is the owner of a building at the foot of East Forty-fourth street, part of which it occupies and part of which it lets to Meyer Meyer Son. The regular entrance to the portion of the building in which the business of Meyer Meyer Son is carried on is from the street; they are butchers and there are means of access to their slaughter-house from defendant's icehouse. In this passageway is an overhead rail, used by defendant's employees to shove along sides of beef. Plaintiff, in June, 1904, was a customer of Meyer Meyer Son and entered this passageway for the purpose of reaching the slaughter-house. While there he was struck on the cheek by a side of beef which was being pushed along in the customary way, causing his injuries, dislocation of lower jaw and loss of two teeth. Under the authorities, the plaintiff, upon the testimony, was at most but a licensee; and the defendant owed him no duty of active care. McCann v. Theelman, 36 Misc. 145; Downs v. Elmira Bridge Co., 41 A.D. 339; Baker v. Otis El. Co., 78 id. 513. The "trolley" appears to have been in good order, nothing out of the ordinary was being done, the plaintiff was familiar with the uses to which this passageway was put and, in entering upon it, even with the acquiescence of the defendant, he assumed at least the ordinary risks of the place and was bound to be particularly careful on that account. With such care he might have avoided the accident. "Acquiescence is not invitation." Forbrick v. General Electric Co., 45 Misc. 452.
GILDERSLEEVE and DAVIS, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.