SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 15, 1969
RALPH FULLERTON, RESPONDENT,
JAMESTOWN SPINNING COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. KLING FACTORIES, INC., THIRD-PARTY DEFENDANT-RESPONDENT
Appeal from judgment of Chautauqua Trial Term, in negligence action.
Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.
Memorandum: The trial court charged the jury that if they found that the defendant, Spinning Company, was negligent because of a violation either of the Labor Law or the Rules of the Board of Standards and Appeals notice was not required. This was error. It is not claimed that the railing was defective in construction. Notice that the condition was known to be unsafe, or was discoverable in the exercise of reasonable care was a necessary element to a recovery. (Zinsenheim v. Congregation Beth David, 10 A.D.2d 501; Zaulich v. Thompkins Sq. Holding Co., 10 A.D.2d 492.) The record, however, establishes as a matter of law that the Spinning Company did have notice.
Judgment unanimously affirmed, with cost.
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