Petersen v. Crawford

The evidence was sufficient to establish that the infant plaintiff, who was a playmate of a tenant, was an invitee; and that the yard appurtenant to defendants’ apartment houses had been used for a long time by plaintiff and the children of the tenants so as to make it a place used with the knowledge and consent of defendants, thus charging them with the duty of keeping it in a reasonably safe condition. (Murtha v. Ridley, 232 N. Y. 488; Parnell v. Holland Furnace Co., 234 App. Div. 567, 570; affd., 260 N. Y. 604.) There was also ample evidence to support a finding that defendants should have anticipated that the infant would be likely to play as he did, and that the defective condition *618of the retaining wall of the yard might subject him to injury. (Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442; Collentine v. City of New York, 279 id. 119.) Accordingly, it was error to dismiss the complaint.

The judgment should be reversed, with costs to the appellant, and a new trial ordered.

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.

Judgment unanimously reversed, with costs to the appellant, and a new trial ordered.