Majority
p. 114KAMPINSKY v. HALLO. (City Court of New York, General Term. April 14, 1893.) Argued before VAN WYCK and FITZSMONS, JJ.
Headnote
Contributory Negligence—Dismissal of Complaint.Where a complaint for injuries caused by the fall of a ceiling in a house leased to plaintiff by defendant states that plaintiff was aware of the defective condition of the premises, but nevertheless moved into and continued to occupy them until the accident, it is properly dismissed, as showing contributory negligence.
Appeal from trial term.
Action by Esther Kampinsky against Johanno Hallo for personal injuries caused by the fall of a ceiling in a house leased by defendant to plaintiff!. The complaint. was dismissed, and plaintiff appeals.
Affirmed.
Samuel I. Frankenstein, for appellant..
Kurzman & Frankenheimer, for respondent.
Conceding that the contention of appellant is correct,—that the trial justice was wrong in compelling her to elect upon which statement in her complaint she relied to support the action brought, and that the complaint should be considered as a whole,—yet the ruling of trial justice dismissing the complaint was correct. Each one of the three statements contained in the complaint specifically alleges that she was well aware of the dangerous and defective condition of the demised premises, and, notwithstanding the possession by her of that knowledge, she moved into and continued to occupy said premises until the time when she
p. 115
was injured by the fall of the ceiling. It is therefore very apparent that she was guilty of contributory negligence; and, as that fact appeared upon the face of the complaint, the trial justice was right in dismissing the same.