Weinfeld v. Kaplan

¶1Action to recover damages for personal injuries sustained by plaintiff in falling through an opening in the floor of a store where he was working. The complaint was dismissed as to both defendants at the close of plaintiff’s case. As to respondent Von Glahn, judgment unanimously affirmed, with costs. No opinion. Present — Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ. As to respondent Kaplan, judgment affirmed, with costs. Johnston, Adel and Taylor, JJ., concur. No opinion. Lazansky, P. J., and Hagarty, J., dissent, vote to reverse and grant a new trial, with the following memorandum: In view of the dismissal of the complaint, giving to plaintiff the most favorable inferences that can be drawn from the testimony, the conclusion is warranted that plaintiff was in Kaplan’s employment. Kaplan knew of the dangerous condition that existed in the store and it was his duty to warn plaintiff thereof.