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172 A.D. 506

Hendler v. Henig

Appellate Division of the Supreme Court of the State of New York · decided 1916-05-05

Appeal by the defendants, Michael Henig and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of November, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 26th day of November, 1915, denying defendant’s motion for a new trial made upon the minutes.

Decided 1916-05-05

Smith, J. (dissenting):

¶1Plaintiff was not a trespasser — not a mere licensee. He came to defendants’ stable upon a business matter, was rightfully there, and defendants owed to him a duty of reasonable care. This alleyway was the only entrance to the stable. Plaintiff found the elevator at rest at the first floor and the chain, which usually guarded the passageway in times of danger, down. This was to him an assurance of safety and in my judgment it is error to hold as matter of law that his *509passing under the elevator was contributory negligence. One about to cross a railroad track finds the gates raised and an engine at rest by the side of the crossing. He may cross without being charged as matter of law with contributory negligence. This case is precisely parallel and the judgment should be affirmed.

¶2Judgment reversed, with costs, and complaint dismissed, with costs.

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