Opinion
281 A.D. 977 120 N.Y.S.2d 334 CLAUDIA ROBINSON et al., Appellants, v. HARVEY HARRIS, Respondent. Supreme Court of New York, Second Department. April 7, 1953
Action by a husband and wife to recover damages for personal injuries and by the husband to recover for loss of services and medical expenses. Since 1941, plaintiffs have occupied a third-floor apartment in a building owned by defendant. In March, 1950, a fire occurred on the ground floor of that building. Plaintiff husband testified that when the third floor became smoke-filled he and his wife started to descend by way of a fire escape, which they reached through a window of their apartment; that his wife fainted and that he carried her down the fire escape to the second floor landing where he seated her; that he attempted for about ten or fifteen minutes to release a drop ladder, which hung by two hooks from the fire escape rail on the third floor, but that he was unable to do so; that the flames reached the second floor and that he and his wife were burned; that upon the arrival of the fire apparatus a ladder was raised to the second floor landing of the fire escape and that his wife was carried down by a fireman and he descended to the street. He also testified that during the time he had lived in the building the fire escape had not been painted. A witness for plaintiffs testified that about three or four months before the fire, at defendant's request, he had inspected the fire escape and had found it to be rusty. At the end of the plaintiffs' case, the court granted defendant's motion to dismiss the complaint. Plaintiffs appeal from the judgment entered thereon. Judgment reversed on the law and new trial granted, with costs to abide the event. Plaintiffs made out a prima facie case and the motion to dismiss the complaint should have been denied.
Adel, Acting P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.