Opinion
February, 1931.
Judgments in favor of the defendants, dismissing the complaint, reversed upon the law and the facts and a new trial granted, costs to abide the event. The evidence presented a question of fact as to whether or not either the defendant tenant and the defendant owner had joint control, or one or the other had exclusive control, of the sidewalk elevator and the stanchion and cable used in connection therewith. A question of fact existed as to whether or not the defendant or defendants, found thus to be responsible for the maintenance and operation of the sidewalk elevator and the stanchion and cable in question, had exercised reasonable care in the use made of the stanchion and cable, either as a result of leaving it in a position of danger when the sidewalk elevator was not in use, or in leaving it in a position that made it accessible to third parties so as to be placed by them in a position of danger to a pedestrian unaware of its presence upon the highway when the sidewalk elevator was not in use. ( Haywood v. N.Y.C. H.R.R.R. Co., 35 N.Y. St. Repr. 748; affd., 128 N.Y. 596; Rosenholz v. Shattuck Co., 112 Misc. 468; Trustees of Canandaigua v. Foster, 156 N.Y. 354; Jennings v. Van Schaick, 108 id. 530; Schweizer v. Willard, 210 App. Div. 480.) Whether or not plaintiff was guilty of negligence was a question of fact. Lazansky, P.J., Young, Hagarty, Carswell and Tompkins, JJ., concur.