
    Third Department,
    November, 1947.
    (November 12, 1947.)
    June Oakes, Respondent, v. Sarah B. Campion, Appellant.
   Memorandum by the Court. This is an appeal from a judgment of the Supreme Court entered in the Office of the Clerk of the County of Broome on the 20th day of January, 1947, in favor of the plaintiff-respondent, and also from an order entered in said clerk’s office on the 7th day of February, 1947, denying motions by the defendant for nonsuit and dismissal of the complaint and to set aside the verdict and for a new trial.

The plaintiff’s hand was punctured by the loose ends of a galvanized screening, on the 23d day of April, 1946, which covered the window of a garage located near a path which was a common passageway and used by the plaintiff and two other tenants. At the time of the accident, which was about 7:00 o’clock in the morning, the plaintiff was walking on this path by the garage in order to take her brother’s lunch to him which he had left on the table. The loose ends of the screening were four to six inches long and protruded out, and according to plaintiff this condition had existed ever since she lived there, which was December, 1944. Knowing of this condition she asked the landlord to repair it the first part of January, 1946. The defendant testified that she did not have a conversation with the plaintiff about the window or the screen until after the accident, and that the plaintiff did not tell her until May 6th that she hurt her hand on the window and the window should be fixed.

The fact that the plaintiff knew of the unsafe condition of this screen and that she momentarily forgot does not constitute contributory negligence as a matter of law. (Conway v. Naylor, 222 N. Y. 437, 442; Dollard v. Roberts, 130 N. Y. 269, 274.) There were disputed facts in this case. The question of contributory negligence was properly one for the jury. (Palmer v. Dearing, 93 N. Y. 7.)

Judgment and order affirmed, with costs.

Hill, P. J.

(dissenting). Respondent has recovered a judgment for damages resulting from alleged negligence against the landlord of the premises in which she is a tenant. The garage on the premises is seventeen feet easterly from the house. She describes it: “ The garage was in very bad condition at that time. There were nails, rusty nails sticking out and the siding all over looked like it was half torn off, and around the window there is heavy galvanized screening that covered the window and there weren’t any boards or anything around it, just sticking protrudingly out there in all directions. * • * It has been that way ever since I lived there.”

On the day she was injured her brother’s car was parked, as she testified “ around three or four, maybe four and a half feet ” northerly from the garage. There was a beaten path from the house easterly alongside the garage npon or adjacent to which the car was parked. She testified that on April 23, 1946, as she was going to the car my hand caught in the wire that was protruding out there, and it punctured my hand.”

Concerning her own knowledge of the condition and the information which she gave the appellant, she testified:

“ Q. Now, did you ever tell Sarah B. Campion, the defendant in this action, of the condition of this back yard-and the condition of this wire? A. Tes, sir, I did, in January, the first part of January, when she came after the rent.
“ Q. What did you tell her? A. I asked her if she would fix it. I told her there was nails sticking out there and told her about the wire protruding from the window and I told her the children might run through there and might get hurt. That was what I was fifraid of.
“ Q. What did she say, if anything? A. She said she wouldn’t fix it, because she wanted to sell the house, and wasn’t going to put any more money into it.”

Assuming that appellant was negligent in permitting the side of the building to remain in the condition described by respondent so that persons might be injured by the protruding material, respondent in passing the building with full knowledge of the condition and with room to avoid .injury was also negligent in coming in contact therewith. (Shields v. Van Kelton Amusement Corp., 228 N. Y. 396.) The protruding nails, siding and wire were not concealed and did not unreasoxably expose respondent to danger, as there was sufficient room to pass in safety. A finding by the jury that she was free from contributory negligence was against the weight of evidence. (Powers v. Montgomery Ward & Co., 276 N. Y. 600.)

A lessor of land is not liable for bodily harm to his lessee resulting from a dangerous condition which existed when the lessee took possession (Restatement, Torts, § 356) unless the lessor has agreed to make repairs (§ 357). A lessor is not liable to a lessee for a condition of which the latter had knowledge at the time the occupancy began (§ 358).

Respondent’s contributory negligence precludes her recovery. (Lanigan v. New York Gas-Light Company, 71 N. Y. 29; Holland v. Turner, 232 N. Y. 518; Conroy v. Saratoga Springs Authority, 259 App. Div. 365, affd. 284 N. Y. 723; Griffin v. State of New York, 250 App. Div. 244.)

The judgment should be reversed on the law and facts and the complaint dismissed.

Heffernan, Brewster, Foster and Russell, JJ., concur in memorandum by the court; Hill, P. J., dissents in an opinion.

Judgment and order affirmed, with costs.  