Nagler v. Cornell University (187 A.D. 470, 1919)

Smith, J.:

The pleadings consist of the complaint and the demurrer, in which the sufficiency of the complaint is attacked. The plaintiff was the employee of the Arrow Window Cleaning Company. The defendant owned a building in connection with its university work upon the corner of Twenty-eighth street and First avenue in the city of New York. Over the operating room in the said premises was a skylight which the plaintiff was engaged in cleaning at the time of the accident. The complaint alleges that the defendant had placed some loose boards over this skylight and upon which the plaintiff was required to stand; that by reason of the tilting of one of these boards the plaintiff fell through the skylight upon the floor of the operating room and received his injuries. The negligence which plaintiff claims to have existed was, first, in not fastening these boards upon this skylight, so that one of the boards could not have tilted and caused the plaintiff to fall, and, second, it is alleged that the board was in a defective, broken and weakened condition by-reason of which the board was caused to tilt and caused the plaintiff to fall.

The natural inference from the allegations of the complaint is that these loose boards were furnished by the defendant for the assistance of the window cleaners in cleaning this skylight. The cleaner could not walk upon the skylight in cleaning the same towards the center, because the glass would not hold him. The boards could not have been securely fastened, because they were placed over the skylight itself, as alleged in the complaint and, as may be fairly inferred, were removed as the cleaners progressed in their work from the center of the skylight towards the edge. While it is alleged that the board was in a defective, broken and weakened condition, it is not alleged that the breaking of. the board caused the plaintiff to fall, but the fact that the board tilted, and the allegations of the complaint do not disclose how the tilting of this board could have been caused by any weak or defective condition of the board itself. The complaint does not, therefore, state facts sufficient to show any liability on the part of the defendant, and the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to the plaintiff to serve an amended complaint upon payment of said costs.

Clarke, P. J., Laughlin, Shearn and Merrell, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to plaintiff to serve amended complaint upon payment of said costs.