Soto v. City of New York

Van Voorhis, J. (dissenting).

Plaintiff is limited by his bill of particulars, and the opening of counsel shows that nothing more is asserted. The trial court held that all of the facts which were alleged or claimed to exist did not constitute a cause of action. This ruling, unanimously affirmed by the Appellate Division, was clearly correct. The roof of this apartment building was not set aside for the common use of tenants nor as an adjunct to the demised premises. On the contrary, plaintiff’s-counsel stated in his opening that children were warned not to go up there. The fact that defendant…