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MAYER v. TEMPLE PROPS.

307 N.Y. 559 (1954)

Ernest Mayer, as Administrator of The Estate of Frank U. Mayer, Deceased, Respondent, v. Temple Props. Incorporated et al., Appellants.

Court of Appeals of the State of New York.

Decided November 18, 1954

Attorney(s) appearing for the Case

John J. Cunneen for appellants.

Arthur Karger, Mortimer Sperling and Samuel Seligsohn for respondent.

LEWIS, Ch. J., CONWAY and DESMOND, JJ., concur with FROESSEL, J.; DYE and VAN VOORHIS, JJ., vote to reverse and dismiss the complaint upon the ground that the appellants are not shown to have violated a duty owing to a trespasser (Carbone v. Mackchil Realty Corp., 296 N.Y. 154); FULD, J., taking no part.

FROESSEL, J.

Frank Mayer, a lad of twelve years, came to his death by falling into an opening, 55 feet deep, in a platform at the rear of premises owned by one of the defendants, and used in common by both. His father sues here as his administrator.

The platform in question abuts a 10-foot passageway in the rear of defendants' properties, which face on the west side of Broadway between 173rd and 174th Streets, New...

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