Schlegel v. City of New York — 90 Misc. 285

Majority

p. 285

William C. Schlegel, Respondent, v. The City of New York, Appellant.

(Supreme Court, Appellate Term, First Department,

May, 1915.)

Headnote

Negligence—liability of city of New York for — when plaintiff held to have been guilty of contributory negligence.

• The city of New York in maintaining its Municipal Court acts in its governmental capacity and is not liable for negligence because of the sticking of a door in the court-house rendering it difficult to open for a week or ten days prior to the time when plaintiff, endeavoring to push said door open, injured his hand which slipped and went through a glass panel in the door.

Plaintiff held to have been guilty of contributory negligence because of the manner in which he opened the door.

Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, rendered in favor of the plaintiff for the sum of eighty-seven dollars.

Frank. L. Polk, corporation counsel (Terence Farley and E. Crosby Kindleberger, of counsel), for appellant.

Rogers & Freudenheim, for respondent.

The plaintiff, on September 25, 1914, went to the Municipal Court, sixth district, Manhattan. His attorney asked him to go out into the corridor. His wife attempted to open the door, but the door would not open. Plaintiff testified' that thereupon ‘£ I reached my right hand over her shoulder to push and it would not open "and I used some force, and as I did that, my hand slipped from the framework into the glass and I didn’t know it was cut.” On cross-examination he testified that the glass panel on the door occupied the upper half, and that when he found that the door would not open by pushing “ a little ” he pushed harder,, whereupon ££ the door pushed open and my hand slipped off and went through the glass. ’ ’

It was stipulated on the trial that Justice Marks would, if called as a witness, testify that the door in question stuck and was difficult to open and that that condition had existed for a week or ten' days prior to the accident. The injuries were slight.

On these facts judgment was rendered for the plaintiff. I think the complaint should have been dismissed. The cause of action was for negligence. In maintaining its Municipal Courts the city acts in its governmental capacity, and is not liable for negligence such as is alleged in this case.

I think, further, that the accident was due to the negligent manner in which the plaintiff opened the door.

The judgment should be reversed, with costs, and complaint dismissed, with costs.

Lehman and Cohalan, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.