McCarthy v. Fleischmann Bros. — 125 N.Y.S. 1129

Majority

p. 1129

McCARTHY v. FLEISCHMANN BROS. CO. et al.

(Supreme Court, Appellate Term.

December 8, 1910.)

Headnote

Appeal from City Court of New York, Trial Term. Action by James McCarthy against the Fleischmann Bros. Company and the Rapp Construction Company. From a judgment against both defendants and from orders denying their respective motions for a new trial, they appeal. Affirmed as to Fleischmann Bros. Company, and reversed as to Rapp Construction Company, and new trial ordered.

Lyman A. Spalding (Theodore H. Lord and Floyd K. Diefendorf, of counsel), for appellant Fleischmann Bros. Co. Frank V. Johnson (Harry S. Austin and Edward J. Redington, of counsel), for appellant Rapp Const. Co. Coffin & Goldmark (Herbert Goldmark, of counsel), for respondent.

There is no evidence that defendant Rapp Construction Company was in control of the stairway, and no evidence of negligence on its part sufficient to sustain the verdict in favor of the plaintiff against it. As to this defendant, therefore, the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. As to the defendant Fleischmann Bros. Company the judgment finds ample support in the evidence, and is affirmed. Dougherty v. Weeks, 126 App. Div. 786 , 111 N. Y. Supp. 218 . Judgment reversed as to the defendant Rapp Construction Company and a new trial ordered, with costs "to appellant to abide the event. As to the defendant Fleischmann Bros. Company, judgment affirmed with costs.