Kreisman v. M. R. & M. R. Realty Corp. , 263 A.D. 701 ( 1941 )

Judgment and order affirmed, with costs, on the ground that plaintiffs failed to establish actionable negligence. Present — Martín, P. J., O’Malley, Townley, Cohn and Callahan, JJ.; O’Malley, J., dissents and votes to reverse and grant a new trial on the ground that the plaintiffs established a prima facie ease upon the questions of negligence and contributory negligence. The fact that the mortgagee was allegedly in control of the building does not exculpate the owners. (Hecht v. Occhipinti Realty Co., Inc., 259 App. Div. 1008.) It was error, therefore, to dismiss the complaint at the close of the entire case.