Petersen v. Crawford — 263 A.D. 617

Majority

p. 617

Albert Petersen, Jr., an Infant under the Age of 14 Years, by His Guardian ad Litem, Albert Petersen, Sr., Appellant, v. Edna C. Crawford and Everett L. Crawford, as Trustees of the Last Will and Testament of Henry Dexter, Deceased, Respondents.

First Department,

April 10, 1942.

Herman E. Brookman, for the appellant.

William E. Lyons of counsel [Ireland & Cohen, attorneys], for the respondents.

The evidence was sufficient to establish that the infant plaintiff, who was a playmate of a tenant, was an invitee; and that the yard appurtenant to defendants’ apartment houses had been used for a long time by plaintiff and the children of the tenants so as to make it a place used with the knowledge and consent of defendants, thus charging them with the duty of keeping it in a reasonably safe condition. (Murtha v. Ridley, 232 N. Y. 488 ; Parnell v. Holland Furnace Co., 234 App. Div. 567 , 570; affd., 260 N. Y. 604 .) There was also ample evidence to support a finding that defendants should have anticipated that the infant would be likely to play as he did, and that the defective condition

p. 618

of the retaining wall of the yard might subject him to injury. (Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442 ; Collentine v. City of New York, 279 id. 119.) Accordingly, it was error to dismiss the complaint.

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

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.

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

Cases cited

Murtha v. Ridley 232 N. Y. 488 N.Y. 1922-02-03 p. 617
Parnell v. Holland Furnace Co. 260 N. Y. 604 N.Y. 1932-11-22 p. 617
Bowers v. City Bank Farmers Trust Co. 282 N. Y. 442 N.Y. 1940-04-16 p. 618