Opinion
December 3, 1926.
Appeal from Supreme Court of Kings County.
Walter L. Glenney, for the appellant.
Hector McG. Curren [ Fred Iscol with him on the brief], for the respondent.
Present — KELLY, P.J., JAYCOX, MANNING, KAPPER and LAZANSKY, JJ.
The property involved was rented to various tenants, with the use of the yard for the playing of children, and the use of the cellar for the benefit of the tenants. Access to and from the yard or cellar could only be had by the tenants going upon the sidewalk and opening the cellar doors, or by going into the cellar from the yard and opening the cellar doors leading to the sidewalk. The opening of the cellar door from underneath on the occasion in question was by a member of the family of one of the tenants while returning to the apartment in which he lived. It was such a situation as required the defendant reasonably to apprehend the likelihood of the cellar doors being opened while the sidewalk was being used by one of the public. In that respect the case differs materially from Kirby v. Newman ( 239 N.Y. 470), where the carelessness was that of mechanics in using the cellar for the benefit of a tenant, and in leaving a properly constructed cellar door open, and the cellar opening unguarded. In this case the intervening agency of the tenants should have been foreseen by the defendant in the exercise of reasonable care, and the situation safeguarded by the defendant controlling the tenants' user of the cellar opening.
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.