Opinion
January 25, 1943.
Plaintiff was a tenant in a two-family house owned by his father, the defendant. Plaintiff and his family resided in the lower apartment with defendant's wife and son. The main entrance was on Louise street and there was another entrance on Chester avenue. The main entrance was covered by a metal canopy. There was evidence that the drain from the canopy was clogged, causing melting snow to drip on the bottom step and the walk leading from the entrance to the side-walk, and that the step and walk were covered with ice resulting from the dripping. As plaintiff was leaving his apartment he slipped on the ice and was injured. The court dismissed the complaint, holding that plaintiff was guilty of contributory negligence as matter of law because he knew of the dangerous condition and he could have left the premises on the Chester avenue side. While it appeared that there was no canopy at the Chester avenue entrance, there was no proof of the condition which obtained there. Although plaintiff had knowledge of the presence of ice and therefore was required to exercise greater care and caution in approaching the step, nevertheless a jury question was presented as to whether he exercised the greater degree of care required. ( Conway v. Naylor, 222 N.Y. 437; Dollard v. Roberts, 130 N.Y. 269; Palmer v. Dearing, 93 N.Y. 7; Leshinsky v. Cohen, 262 App. Div. 775.) Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.