Opinion
February 15, 1943.
Present — Hagarty, Johnston, Adel, Taylor and Lewis, JJ.
Action to recover damages for personal injuries suffered by plaintiff who, just prior to the accident, was sitting on a loading platform in front of the building in which his employer was a tenant. Upon arising, plaintiff struck his head against the end of a stand-pipe, which was about three feet, nine inches above the floor of the platform. The trial was by the court without a jury. At the close of the plaintiff's case the motion of the respondent to dismiss the complaint for failure of proof was granted, and judgment was thereupon entered. Judgment unanimously affirmed, with costs. The respondent-landlord may not be cast in damages under the proof adduced. The platform was erected by the tenant after it took possession of the premises under the lease. It was erected upon the sidewalk, over which the landlord had no control. Ownership and control were in the city of New York. The fact that the landlord had the right under the lease to re-enter and make repairs does not affect the conclusion. ( Tagg v. Senner, 277 N.Y. 692.)