
    Adolf Kraushofer, Appellant, v. Morris Miller, Respondent.
    First Department,
    February 3, 1933.
    
      Joseph Sussman of counsel [Sussman & Sussman, attorneys], for the appellant.
    
      Daniel Mungall, for the respondent.
   Per Curiam.

The complaint was erroneously dismissed at the conclusion of plaintiff’s case because sufficient evidence had been adduced to present for the jury’s consideration the question of defendant’s common-law liability for plaintiff’s injury. Plaintiff, a cabinet maker, had been engaged to repair the dumbwaiter box and to construct a bench to be placed thereunder in order to prevent the dumbwaiter box from striking the cellar floor. Having completed the repairs to the box, he had returned to the basement to make and install the bench. He was not employed to repair the shaft or counter weight and was not advised that the counterweight had been coming out of its slide into the shaft, or that it, or the rope holding it, were not in proper condition. The jury might have found from the evidence that defendant had notice of these defects. Accordingly, when the weight fell, and injured plaintiff, while he was in the shaft on top of the box, it may not be held, as matter of law, that the plaintiff was guilty of contributory negligence or that the defendant was free from negligence.

The judgment appealed from must be reversed and a new trial ordered, with costs to plaintiff to abide the event.

Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.

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