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Abramovitz v. Tenzer

Supreme Court of New York, Appellate Division

April 21, 1911


APPEAL by the defendants, Michael Tenzer and another, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 8th day of December, 1910, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered in the office of the clerk of said court on the 9th day of July, 1910.


Henry Greenberg, for the appellants.

Nicholas A. Heymsfeld, for the respondent.

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This is an appeal by the defendants from a determination of the Appellate Term affirming a judgment of the Municipal Court. The appellants owned a building at No. 134 Essex street in the city of New York, which they altered into a moving picture theater. The alterations embraced the erection in the front part of the building of a small lobby. On April 27, 1910, a few days after the alterations had been completed, the plaintiff, having purchased a ticket, was standing in the lobby awaiting an opportunity to enter the theater, when the floor at one end collapsed and fell, plaintiff falling with it and sustaining the injuries for which she has received damages, the amount of which is not questioned. The complaint contains two counts, one for negligence and one for breach of contract, and at the trial the plaintiff elected to stand on the latter ground. Plaintiff offered no evidence as to the cause of the accident. The defendants' proof showed that they had employed an architect to prepare plans and specifications and superintend the work of alteration; that the plans and specifications were approved by the building department, and that a contractor of experience was employed to carry them out. After the alterations had been completed, and before the theater opened, the work was inspected by the architect, and by inspectors of the police, fire and building departments. From an examination made after the accident, the defendants' witnesses were of opinion that it had occurred in consequence of the breaking of what is known as a 'bridle iron' which held up the beams at one corner of the lobby. Of such 'bridle irons' there was one at each corner of the lobby capable of holding seven or eight tons of weight, besides a number of smaller ones. It was one of the larger irons which had broken, and the break was found to have resulted from a latent defect in the iron consisting of what is known as a 'hair flaw' inside the iron, which the witnesses testified could not be discovered either by inspection or by a hammer test. The contractor testified that the 'bridle irons' (twenty-four in all) had been purchased from a well-known and long-established concern dealing in such goods, and both the architect and the contractor testified that they had examined and tested each bridle iron before it was put in the work, and that

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they found no evidence of any defect. There is no substantial dispute as to the law applicable to the case. The defendants were not absolute insurers of the safety of the structure erected by them, but, having erected the structure for the use of the public, and having invited the public to resort to it, the defendants held out to the public and impliedly undertook that due care had been exercised in its erection, and that the building was reasonably safe for the purpose for which it was designed and used. ( Schnizer v. Phillips, 108 A.D. 17; Fox v. Buffalo Park, 21 id. 321; affd., 163 N.Y. 559.) The evidence in behalf of defendants, if believed, indicated that the defendants, as well as their architect and contractor, had exercised a reasonable degree of care in planning and executing the alterations of the building, and that the defect which led to the accident was one which could not have been discovered by the exercise of any care which defendants or their employees could reasonably have been called upon to exercise. This evidence was wholly uncontradicted, no attempt being made to show, by expert evidence or otherwise, that such a defect in the iron as that to which the accident was attributed, could have been discovered by any test known to architects and builders. As it stood, therefore, if believed, the defendants' evidence completely absolved them from any culpable fault. The trial justice, therefore, who tried the case without a jury, must either have erred in the law, and held the defendants to an unwarrantable responsibility, or have disbelieved the evidence of the architect and contractor. Both of these witnesses were, in a sense, interested because lack of due care was imputed to them, and the question is whether or not this fact justified the rejection of their uncontradicted testimony. The general rule is said to be that when a witness is interested in the question, though he is not impeached or contradicted, his credibility is a question for the jury, and the court is not warranted in directing a verdict upon his testimony alone, and the same rule applies to the testimony of two witnesses equally interested and testifying to the same facts. (Saranac & L. P. R. R. Co. v. Arnold, 167 N.Y. 368.) There is no question in the present case of directing a verdict, and there is still to be considered the rule which should be applied in estimating the value of the evidence of an interested witness. In the first place it

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is obvious that it is not obligatory to reject his evidence merely on account of his interest, nor should it be rejected capriciously or arbitrarily. The question was discussed at some length in Hull v. Littauer (162 N.Y. 569), and the following rule was laid down: 'Where, however, the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities; nor, in its nature, surprising, or suspicious, there is no reason for denying to it conclusiveness.' In support of the rule the court cited Lomer v. Meeker (25 N.Y. 361) and Kelly v. Burroughs (102 id. 93) which are to the same effect. In the present case the testimony of the architect and contractor was not contradicted by direct evidence, and we are unable to draw any contradictory inferences from any of the evidence in the case. Nor is there anything in the evidence or any fact within our knowledge of which we may take judicial notice which renders the testimony of defendants' witnesses surprising or suspicious. For these reasons we do not consider that the trial justice was justified in rejecting the evidence of defendants' witnesses, notwithstanding their interest in the result. Of course, we do not know that he did reject it, but if he did not, he erred in the law as to the degree of responsibility resting upon defendants. In either case the judgment was erroneous.

The determination of the Appellate Term and the judgment of the Municipal Court must be reversed and a new trial ordered, with costs to the appellants in this court and in the courts below to abide the event.


Determination and judgment reversed and new trial ordered, with costs to appellants in this court and in ...

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