Owen v. Straight — 267 N.Y. 453

Majority

p. 453

Myra Owen, as Administratrix of the Estate of Paul Owen, Respondent, v. Benjamin Straight, Doing Business under the Name of Thirteenth Lake Lodge, Appellant. Peter Owen, Respondent, v. Benjamin Straight, Doing Business under the Name of Thirteenth Lake Lodge, Appellant.

(Argued March 18, 1935;

decided May 21, 1935.)

p. 454

J. Stanley Carter for appellant.

p. 455

James A. Leary and Walter A. Fullerton for respondents.

We agree with the Appellate Division that, “ Under the evidence, irrespective of the origin of the fire, it was a question of fact whether the defendant had used reasonable care to safeguard his guests.” ( 242 App. Div. 892 , 893.) There was, however, no evidence of negligence in respect of the origin of the fire. The refusal so to charge the jury was error for which a new trial should be had.

In each case the judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Crouch and Loughran, JJ., concur; Hubbs and Finch, JJ., dissent and vote to reverse and dismiss the complaint.

Judgments reversed, etc.