Carbone v. Mackchil Realty Corp. , 270 A.D. 778 ( 1946 )

Memorandum by the Court. Defendants have appealed from judgments in favor of the infant plaintiffs in each of the above-entitled actions and also from judgments in favor of their guardians for loss of services and expenses, and from an order denying motions for a new trial.

Defendants were in possession of business property in the city of Meehanicville on which there was a factory. The property was bounded partly by public highways, by private property and by a creek. At one time there was a barn on the property which had been removed but'the foundation was permitted to remain. Water was carried from the factory by means of pipes to the creek as a result of which the foundation was undermined. The earth beneath the easterly and westerly walls of the foundation had been washed away. Children had been accustomed to go on the premises for the purpose of passing and repassing and also for their amusement.

On October 16, 1942, the infant plaintiffs were on defendants’ property and two of them climbed upon the foundation and the third was about to do so when the wall collapsed, resulting in their injuries. There was evidence from which the jury could find that the infant plaintiffs were licensees. It is undisputed that the defendants knew that children had been accustomed to play on these premises for a long period of time and that defendants also had notice of the dangerous condition of the foundation walls. The jury found that defendants were guilty of affirmative negligence in permitting the dangerous structure to remain on the premises or to take means to remedy it. The evidence sustains the finding of the jury that the defendants were guilty of negligence. (2 Restatement, Torts, § 339, subds. [a], [b], [e], [d]; Comments on § 339, subd. (a); also §§ 341, 342; Barrett v. Brooklyn Heights Railroad Co., 188 App. Div; 109, affd. 231 N. Y. 605; Meek v. Corbisello, 266 App. Div. 1044; Fedearowicz v. City of Amsterdam, 268 App. Div. 803, affd. 293 N. Y. 814.)

Judgments and orders affirmed, with one bill of costs.