Wax v. Woodbury G. Langdon Co.

Burns, J.

Plaintiff sued to recover damages for personal injuries. Defendant corporation is the owner of a building. Defendant Shrage is a tenant who conducts a factory on the third floor of the building, and is the employer of the plaintiff.

On January 1, 1914, defendant Shrage’s shop was in operation, and plaintiff came to work in the morning at eight o’clock. The elevator (the usual means of access) was not running, so she used the stairs. At the close of work, six o’clock in the evening, she descended the stairs. The last flight, leading to the ground floor, was very dark and there was no banister. Plaintiff testifies: “I didn’t see how to step, and I fell down. There wasn’t anything to keep my hand.” Plaintiff served the notice required by the Employers’ Liability Act.

At the trial, before plaintiff’s case was concluded, at the suggestion of the learned judge below, counsel for defendant Shrage moved to dismiss the complaint as to him, which motion was granted. It is quite evident that such action was erroneous as in that stage of the case plaintiff had not completed her proof, and there was nothing to indicate whether or to what extent defendant Shrage had right in, or control over, the halls and stairway affected, so that the question of his obligation to maintain reasonably safe access and egress (See Dorney v. O’Neill, 49 App. Div. 8, 10) was still open. At the close of the entire case the defendant corporation’s motion to dismiss was granted. Its answer admits that it is the owner of the premises, and that the various floors were let to tenants including the defendant Shrage.

Under the circumstances, it seems to me that, on the record, as matter of law, the defendant corporation was liable both for failure to light the stairs and for failure to safeguard them with a balustrade, and that the case should have been submitted to the jury to determine the question of plaintiff’s contributory negligence.

The respondent corporation seeks to justify the dismissal by its interpretation of the provisions of the present Labor Law. Section 79c requires hand-rails on the stairs of “ tenant factories.” Section 94 makes the owner of the building responsible for any failure to observe sections 79 and 80. The provision for handrails under the Labor Law of 1910 was contained in section 80. Section 94 has remained practically unchanged. Respondent contends that by reason of the change in the section numbers the owner is no longer liable for failure to maintain a hand-rail. The statute, however, is remedial and should receive a construction tending to effectuate its purpose. It is quite evident that when the provisions as to hand-rails in old section 80 were transferred to the new section 79c, .section 94 was, by an oversight, not amended in detail to correspond; bnt, under the circumstances, I think that the provisions of section 94, making the owner liable for the observance of the requirements of section 79, must be held to refer as well to section 79c.

But, whatever doubt may be entertained as to this conclusion, I have none as to the owner’s responsibility for failure to light the hall. Indeed, the defendant admits that this requirement, contained in subdivision 3 of section 81 of the present act, would ordinarily be binding on it, but claims that no responsibility attaches in the present case because the section requires the hall to be lighted only “ on every work day in the year from the time when the building is open for use in the morning until it is closed in the evening.” The record shows that the building was open for use. in Page v. Shainwald, 169 N. Y. 246 (1901), it was held that statutory holidays do not stand on the same basis as Sunday so far as the doing of work thereon is concerned. It was there decided that a tender of stock, ■ which a contract provided should be made on the first of January, must be so made regardless of its being a holiday, the court pointing out that the first of January was to be treated like any other day, except in so far as the statutes had otherwise provided, and that the sole provisions in that respect were those relating to negotiable paper (Laws of 1887, chap. 289) and to- the closing of public offices. Laws of 1897, chap 614, § 1. The former has now become General Construction Law, section 24, and Negotiable Instruments Law, section 5, and the latter General Construction Law, section 24, and Public Officers Law, section 62. The only additional enactment relating to public holidays (except some trifling change not germane to the present case) is the addition of section 25, General Construction Law (the re-enactment of Laws of 1902, chapter 39), designed to meet the difficulty pointed out in the Page case, namely, the payment of money or the performance of a condition on a public holiday.

As there is, therefore, nothing in the language of the act under consideration to exclude the notion of the owner’s liability on January first, when the building was open, and as it would be contrary to the spirit of the act to assume that it intended to relieve the owner of responsibility on a day when it was perfectly lawful to work, I cannot agree with the respondent’s contentions in this respect.

Seabuby and Cohalan, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.