
    Alonzo W. Doremus, as Administrator of the Estate of Charles A. Sutton, Deceased, Appellant, v. A. Leopold Auerbach et al., Doing Business under the Firm Name of D. Auerbach & Sons, et al., Respondents, Impleaded with Another.
    
      Doremus v. Auerbach, 176 App. Div. 512, affirmed.
    (Argued May 9, 1918;
    decided May 28, 1918.)
    Appeal from a judgment entered March 3, 1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to" recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. The deceased was a mechanical draftsman employed by the Otis Elevator Company. It had a contract with the defendants Auerbach to install elevators in a building under construction. The deceased was sent to these premises by the mechanical engineer of the Otis Elevator Company to verify some measurements for the overhead supports which required him to go to the roof. It was the first time he had been sent to that building. There were no witnesses to the accident. The deceased was found while still alive directly below an open landing in a stairway. His death was due to a fractured skull. It was claimed that deceased entered the building by the main entrance, started to go up the only stairway which appeared to be and was in general use by the workmen in going between floors and fell to his death through the open landing. The Appellate Division held that there was no evidence that defendants failed in any duty that they owed to the intestate and that if there was any negligence in the case it was that of the deceased, who, if he did ascend the stairway, did so in face of the obvious fact that it was uncompleted, and that it was badly lighted.
    
      Theodore H. Lord, John C. Robinson and* Frederick Mellor for appellant.
    
      Anthony M. Menkel and Henry S. Curtis for respondents Auerbach.
    
      Clayton J. Heermance and Harold F. Klein for William L. Crow Construction Company, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin and Andrews, JJ. Dissenting as to defendants Auerbach: Chase, Hogan and Cardozo, JJ.  