Schmidt v. Cook
New York Court of Common Pleas
Appeal from city court, general term. Action for personal injuries by Lena Schmidt, an infant, by Frank Schmidt, her guardian, against Valentine Cook and John J. Radley. The injuries resulted from the falling of a flagstone which was leaning against the fence in the back yard of defendants’ premises, occupied by plaintiff’s father and others as a tenement house. Plaintiff was playing about the stone when it fell.
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Appeal from city court, general term. Action for personal injuries by Lena Schmidt, an infant, by Frank Schmidt, her guardian, against Valentine Cook and John J. Radley. The injuries resulted from the falling of a flagstone which was leaning against the fence in the back yard of defendants’ premises, occupied by plaintiff’s father and others as a tenement house. Plaintiff was playing about the stone when it fell. From a judgment (20 N. Y. Supp. 889) reversing a judgment for plaintiff, and dismissing the complaint, plaintiff appeals.
1Opinion of the CourtPryor, J.
Assuming the back yard to have been reserved by the landlord for the common use of the tenants, (Peil v. Reinhart, 127 N. Y. 381, 27 N. E. Rep. 1077;) that the rock was a nuisance; and that the landlord let the premises with knowledge of the nuisance,—then, beyond question, he would be responsible for the injury to the plaintiff, if in no way caused by her own negligence. But the fatal defect in the plaintiff’s case is that neither by allegation in the complaint nor by proof on the trial does it appear that the defendants were the landlords, or in control of the premises. True, the receipts…
2Cases cited15 opinions
- Railroad Co. v. StoutSupreme Court of the United States · 1874
- Kunz v. . City of TroyNew York Court of Appeals · 1887
- Nagel v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1882
- Barrett v. Southern Pacific Co.California Supreme Court · 1891
- Peil v. . ReinhartNew York Court of Appeals · 1891
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3Cited by9 opinions
- West Construction Co. v. Atlantic Coast Line Railway Co.Supreme Court of North Carolina · 1923
- Kopplekom v. Colorado Cement Pipe Co.Colorado Court of Appeals · 1901
- Malsky v. Schumacher & EttlingerNew York Court of Common Pleas · 1894
- Roberton v. Mayor of New YorkNew York Court of Common Pleas · 1894
- Guichard v. NewNew York Supreme Court · 1895
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