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Bornstein v. Faden

Supreme Court of New York, Appellate Division

February 2, 1912

PAULINE BORNSTEIN, as Administratrix, etc., of BRUCHA FRIEDA GOLDMAN, Deceased, Appellant,
BENI FADEN and MARY FADEN, Respondents.

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APPEAL by the plaintiff, Pauline Bornstein, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 26th day of May, 1911, upon the dismissal of the complaint at the close of plaintiff's case on a trial at the New York Trial Term, and also from an order entered in said clerk's office on the 21st day of June, 1911, denying the plaintiff's motion for a new trial made upon the minutes.


L. B. Boudin, for the appellant.

Walter G. Evans, for the respondents.


This is a statutory action to recover for the death of Brucha Frieda Goldman, alleged to have been caused by the negligence of the defendants in failing to light the hallways of the tenement building known as No. 14 Clinton street, borough of Manhattan, New York, between sunset and sunrise, as required by the provisions of section 82 of the Tenement House Act (Laws of 1901, chap. 334), which was re-enacted by section 76 of the Tenement House Law (Consol. Laws, chap. 61; Laws of 1909, chap. 99.) [a1] The defendants were the owners of the premises and building, which was a six-story tenement house with three apartments on each floor. The decedent resided with relatives in one of the apartments on the second floor, being the first floor above the ground floor. She was seventeen years of age, and was well and strong and sewed by hand as a piece worker for a living. The second floor was connected with the entrance hallway on the ground floor by a stairway consisting of sixteen steps. Shortly before sunrise on February 2, 1909, the decedent was on her way from the apartment, of which she was one of the occupants, to the street, and

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to do this she was obliged first to pass easterly along the hallway, separated from the stairway by a railing, and then to turn to her right and go down one or two steps to a platform or landing at the head of the main stairs and then after still further turning to her right to proceed westerly down to the street. There was no light in the hall on the second floor, and the lower hall was not lighted. The only eye witness to the accident came out of the apartment with the decedent and was within a few feet of her. She testified that the decedent was walking slowly with her hand on the railing or banister of the stairs, and that as she turned to go down the stairs she fell and that 'when she slipped her foot, she hollered out.'

The testimony of the eye witness tends to show that decedent did not fall until after she reached the landing or platform at the top of the main flight of stairs, but she could not tell whether decedent fell from the first or second step at the top of the main stairs; but she says that she saw decedent falling when four or five steps down. This witness gave further testimony tending to show that she saw the decedent slip 'two or three or four steps below this platform,' meaning the said landing or platform at the head of the main stairs which was one or two steps below the hall above, and she finally stated that decedent was a few steps below the landing when she saw her body falling, but that she did not know whether decedent 'slipped on the top stair or on the next stair.' The decedent fell to the foot of the stairs and struck her head and died as the result of the injuries sustained. The evidence further tended to show that it was quite dark in the hallway and on the stairs at the time of the accident, and immediately after the accident, in order to see to pick the decedent up and carry her back to her apartment, the gas in the lower hallway was lighted.

At the close of the plaintiff's evidence the complaint was dismissed on motion of counsel for the defendants on the grounds that plaintiff had failed to establish a cause of action or to show any negligence on the part of the defendants which was the proximate cause of the accident, or that decedent was free from contributory negligence.

We are of opinion that the evidence required the submission of the case to the jury. Section 82 of the Tenement House Act,

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as re-enacted by section 76 of the Tenement House Law, provides as follows:

'Public halls. In every tenement house a proper light shall be kept burning by the owner in the public hallways, near the stairs, upon the entrance floor, and upon the second floor, above the entrance floor of said house, every night from sunset to sunrise throughout the year, and upon all ...

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