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HOFFMAN v. RACONELLO

9 A.D.2d 766 (1959)

Karl Hoffman, Appellant, v. Anthony Raconello, Doing Business under the Name of Modern Asphalt Driveways, Respondent, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.

November 2, 1959

Judgment affirmed, with costs.

No opinion.

Kleinfeld, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum:

Under all the circumstances a question of fact was presented as to respondent's negligence. The distinction between a licensee and an invitee is so nebulous and unreal that it must be discarded. The only issue is whether there was negligence under all the prevailing circumstances...

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