McCABE v. COHEN, 294 N.Y. 522 (1945)

63 N.E.2d 88

WALTER J. McCABE, Respondent, v. HENRY COHEN et al., Respondents, and GEDEX REALTY CORPORATION, Appellant.

Court of Appeals of the State of New York.Argued May 24, 1945
Decided July 19, 1945

Page 523

Appeal from the Supreme Court, Appellate Division, Second Department, STEINBRINK, J.

Page 524

William T. Gallagher and Emery M. Anderson for appellant.

Thomas J. O’Neill, Daniel Danziger and Leon A. Mnuchin for plaintiff, respondent.

Page 525

Samuel J. Penn and H. Sidney Landau for defendants-respondents.

Per Curiam.

There was evidence from which the jury could have found that the president of the defendant-appellant knew that the fire escapes, including the stairway in question, were “at a point where further corrosion would make them dangerous”; that he had reason to believe that the vendee would not realize the risk involved and that he failed to disclose this condition to the vendee. Under the rule approved in Kilmer v. White (254 N.Y. 64) and in Pharm v. Lituchy (283 N.Y. 130), the trial court properly refused to dismiss the complaint (Restatement of Torts, § 353).

In view of the defendant-appellant’s failure to take proper exception to the charge with respect to sections 564-15.0 and C26-193.0 of the Administrative Code, we do not pass upon the applicability of those sections to the evidence in this record.

The judgment should be affirmed, with costs.

LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur.

Judgment affirmed.

Page 526