Kampinsky v. Hallo — 52 N.Y. St. Rep. 265

Majority

p. 265

Esther Kampinsky, App'lt, v. Johanno Hallo, Resp't.

(City Court of New York, General Term,

Filed April 14, 1893.)

Headnote

Negligence—Contributory.

Where a person, with knowledge of the dangerous and defective condition of demised premises, moves into and occupies them until injured by the fall of the ceiling, he is guilty of contributory negligence in so doing, and cannot recover for such injuries.

Appeal from judgment dismissing the complaint in an action for negligence.

Samuel I. Frankenstein, for app'lt; Kurzman & Frankenhei mer, for resp't.

Conceding that the contention of 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 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.

Judgment affirmed, with costs.

Yah Wyck, J., concurs.