[142 N.Y.S.2d 791] Joseph Kane, New York City, for appellant.
Frank J. Horan, New York City, of counsel (Phillips, Ahearn & Bivin, New York City), for respondent.
Before COHN, J. P., and CALLAHAN, BREITEL, BOTEIN, and RABIN, JJ.
On November 23, 1946, the deceased, Francis A. Courtney, fell while descending a stairway in the premises 521-29 W. 207th Street, Borough of Manhattan, New York City. He was rendered unconscious, and died the following day.
The premises are a two-story building. The first floor is occupied by stores, and the second floor consists of a meeting room or hall, approximately 60 X 100 feet, which was leased by the defendant-respondent to St. Joseph's Council, Knights of Columbus, for a 'meeting and club room and for conducting its social activities'. The deceased was attending a wedding held in the hall, which had been rented out by the Council for that purpose on the day of the accident.
One of the elements of negligence asserted by the plaintiff was the failure to supply handrails as required by statute. If the premises was a public building, the stairway was required to have handrails on both walls. In fact, there was only one handrail on the wall to the left in descending the stairs. The deceased's wife had her hand on that rail, and he had his left arm under his wife's right arm. The stairway was about four feet wide.
The trial court found that there was no defect in any steps, and noted that as the decedent fell he 'was propelled forward with his arms outstretched, it was physically impossible for him to have grabbed a handrail [142 N.Y.S.2d 792] even if one had been there.' We think that this overlooks the fact that, if a handrail had been furnished, the decedent might have held on to it as he descended the stairs, and could have avoided falling. Therefore, the absence of the rail, if required by law, would seem to be a proximate cause of the accident. See Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814; Davidoff v. Cohen, 136 Misc. 404, 241 N.Y.S. 436. However, the necessity for the rail depends upon whether the premises was a public building within the applicable provisions of law.
The evidence disclosed that the hall of the Council was a lodge room or place in which persons were congregating for recreational purposes. At the time of the accident, therefore, the premises was a public building within the meaning of the Administrative Code of the City of New York, § C26-235.0, and handrails were required on both sides of the exit stairs, § C26-292.0(1). The law was the same in this respect in 1921, when the building was erected, and during the intervening years, see N.Y.City Code of Ordinances, Building Code, ch. 5, art. 4, § 70, subd. 2, and ch. 5, art. 8, § 153, subd. 6.
We hold that the absence of the hand-rail was a proximate cause of the fatal injury to plaintiff's intestate. Martin v.
Herzog, supra; Davidoff v. Cohen, supra. A handrail is designed to act 'as a protection against slipping and falling down the stairs,' Cahill v. Kleinberg, 233 N.Y. 255, 259, 135 N.E. 323, 324; see, also, De Casiano v. Morgan, 308 N.Y. 526, 127 N.E.2d 321.
We have examined the record concerning control of the premises, including the stairway, and find that there is ample evidence that the defendant-respondent was legally in control.
Accordingly, we award the plaintiff the sum of $15,511.35 as damages on the first cause of action and the sum of ...