Bencekovich v. Aubry — 251 A.D. 268

Majority

p. 268

Mary Bencekovich, as Administratrix, etc., of Vinko Bencekovich, Deceased, Appellant, v. Elise W. Aubry, Respondent.

First Department,

May 28, 1937.

p. 269

Joseph R. Apfel of counsel [Louis Fleischer, attorney], for the appellant.

Frederick Mellor of counsel [William Butler, attorney], for the respondent.

Plaintiff’s evidence established prima facie that her intestate in entering on the roof extension was an invitee, not a mere licensee. With respect to the question of contributory negligence, the burden of proving which rested upon the defendant, there was presented a question of fact for the jury. Under the circumstances, therefore, the complaint was improperly dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Martin, P. J., O’Malley, Dore, Cohn and Callahan, JJ.; Martin, P. J., dissents and votes to affirm.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.