Schnizer v. Phillips — 108 A.D. 17

Majority

p. 17

Julia Schnizer, Respondent, v. Louis A. Phillips, Appellant.

Headnote

Negligence — implied warranty that premises thrown open to the public are reason- , ably safe for the purposes for which they are designed.

Where a party in possession of premises throws the same open to the public for the purposes of gain, he impliedly warrants the premises to be reasonably sáfe for the purpose for which they were designed; and where a patron of the premises, while using a structure thereon in the manner in which it is designed to be used, is injured by the fall thereof, the burden of explaining the cause of the accident and of showing freedom from negligence is upon the party in possession of the premises. -

Appeal by the defendant, Louis A. Phillips, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of August,-1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Louis J. Altkrug, for the appellant.

Alexander Rosenthal [Alexander A. Tausky with him on the brief], for the respondent.

The defendant Phillips was the lessee of the iron pier at Rockaway Beach, and his lessors in the season of i902 erected a new platform thirty feet by ninety feet alongside of the iron pier. This new platform or extension of the pier was completed in the month of May, and the defendant Phillips constructed upon such new platform a covering of wood and threw the same open to the public

p. 18

for the purpose of serving meals. On the 25th day of May, 1902, the plaintiff, with' her escort and others, was seated at a table upon ; this platform, some ten or twelve other tables being likewise occupied, when the platform collapsed and she sustained injuries resulting in six months’ illness, a considerable doctor’s bill, Ctc.j for which she has recovered a judgment of $1,00(1 ■

The law is well settled in this State that where a party in posses. . sion of premises throws the same open to the' public for the purpose of gain, he impliedly warrants the premises to be reasonably safe for the. purposes for which they were designed; and-where, as in ■ the case at bar, the plaintiff is injured by the fall of a structure which she is using at the invitation of the person in charge, and in the manner which such person had a right to expect the-same would be used, the burden of explaining the cause of the accident and of showing freedom from negligence is upon the defendant. The plaintiff was upon this platform for the" purpose of eating a meal; she was there because the defendant impliedly stated to her that the place was safe for that purpose, and it was the duty of the defendant to have the premises in a reasonably safe condition." The. ■ platform fell, the plaintiff Was injured,-and the defendant having failed to show a condition of facts establishing a reasonable degree of care to make the .premises what he had held them out to be, he was properly chargeable i with liability for the injuries sustained. . (Fox v. Buffalo Park, 21 App. Div. 321 ; affd„ 163 N. Y. 559 ;)

An examination of the various questions suggested by appellant’s . brief fails to disclose reversible .error, and the judgment and order should be affirmed, with costs.

Present - Hirschberg, P. J., Bartlett, Woodward, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.