Misc.] Supreme Court, Appellate Term, December, 1914.

at the suggestion of the learned judge below, counsel for defendant Shrage moved to dismiss the complaint as to him, which motion was granted. It is quite evident that such action was erroneous as in that stage of the case plaintiff had not completed her proof, and there was nothing to indicate whether or to what extent defendant Shrage had right in, or control over, the halls and stairway affected, so that the question of his obligation to maintain reasonably safe access and egress (See Dorney v. O'Neill, 49 App. Div. 8, 10) was still open. At the close of the entire case the defendant corporation's motion to dismiss was granted. Its answer admits that it is the owner of the premises, and that the various floors were let to tenants including the defendant Shrage.

Under the circumstances, it seems to me that, on the record, as matter of law, the defendant corporation was liable both for failure to light the stairs and for failure to safeguard them with a balustrade, and that the case should have been submitted to the jury to determine the question of plaintiff's contributory negligence.

The respondent corporation seeks to justify the dismissal by its interpretation of the provisions of the present Labor Law. Section 79c requires hand-rails on the stairs of " tenant factories." Section 94 makes the owner of the building responsible for any failure to observe sections 79 and 80. The provision for handrails under the Labor Law of 1910 was contained in section 80. Section 94 has remained practically unchanged. Respondent contends that by reason of the change in the section numbers the owner is no longer liable for failure to maintain a hand-rail. The statute, however, is remedial and should receive a construction tending to effectuate its purpose. It is quite evident that when the provisions as to hand-rails in old section 80 were transferred to the new section 79c, section 94

Supreme Court, Appellate Term, December, 1914. [Vol. 88.

was, by an oversight, not amended in detail to correspond; but, under the circumstances, I think that the provisions of section 94, making the owner liable for the observance of the requirements of section 79, must be held to refer as well to section 79c.

66

But, whatever doubt may be entertained as to this conclusion, I have none as to the owner's responsibility for failure to light the hall. Indeed, the defendant admits that this requirement, contained in subdivision 3 of section 81 of the present act, would ordinarily be binding on it, but claims that no responsibility attaches in the present case because the section requires the hall to be lighted only " on every work day in the year from the time when the building is open for use in the morning until it is closed in the evening." The record shows that the building was open for use. in Page v. Shainwald, 169 N. Y. 246 (1901), it was held that statutory holidays do not stand on the same basis as Sunday so far as the doing of work thereon is concerned. It was there decided that a tender of stock, which a contract provided should be made on the first of January, must be so made regardless of its being a holiday, the court pointing out that the first of January was to be treated like any other day, except in so far as the statutes had otherwise provided, and that the sole provisions in that respect were those relating to negotiable paper (Laws of 1887, chap. 289) and to the closing of public offices. Laws of 1897, chap 614, § 1. The former has now become General Construction Law, section 24, and Negotiable Instruments Law, section 5, and the latter General Construction Law, section 24, and Public Officers Law, section 62. The only additional enactment relating to public holidays (except some trifling change not germane to the present case) is the addition of section 25, General Construction Law (the re-enactment of Laws of 1902, chapter 39), de

Misc.] Supreme Court, Appellate Term, December, 1914.

signed to meet the difficulty pointed out in the Page case, namely, the payment of money or the performance of a condition on a public holiday.

As there is, therefore, nothing in the language of the act under consideration to exclude the notion of the owner's liability on January first, when the building was open, and as it would be contrary to the spirit of the act to assume that it intended to relieve the owner of responsibility on a day when it was perfectly lawful to work, I cannot agree with the respondent's contentions in this respect.

SEABURY and COHALAN, JJ., concur.

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

LINCOLN TAXICAB COMPANY, Appellant, v. John H. SMITH, Respondent.

(Supreme Court, Appellate Term, First Department, December,

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1914.)

Automobiles - - violation of section 290(3) of Highway Law — action for damages when exclusion of evidence bearing on accident is

error.

An innocent party injured as a result of the violation of section 290(3) of the Highway Law, which expressly prohibits the operation of a motor vehicle by an intoxicated person, may maintain an action for damages.

In an action to recover for damages to the taxicab of plaintiff struck at a street crossing by defendant's motor vehicle which he was driving, evidence that at the time of the accident he was put under arrest in an intoxicated condition is material and its exclusion is error. It had a further bearing on defendant's negligence by reason of the testimony of a disinterested witness who testified that defendant's car was going in a

Supreme Court, Appellate Term, December, 1914. [Vol. 88.

"wabbly" condition at from fifty-five to sixty miles an hour, that the taxicab was near the centre of the street when struck by defendant's car, and that no collision would have occurred had defendant directed his car to the rear of the taxicab.

APPEAL by the plaintiff from a judgment, rendered in the Municipal Court, of the city of New York, borough of Manhattan, first district, in favor of the defendant, in a trial without a jury.

Charles M. Kiefer, for appellant.

Goldstein & Goldstein (Abraham Cupton, of counsel), for respondent.

COHALAN, J. In an action to recover damages for negligence, plaintiff set up two causes of action: (1) It sues for damages, alleging that the defendant so negligently operated his automobile as to injure the plaintiff's taxicab; and (2) it claims damages because the defendant, while in an intoxicated condition so carelessly and recklessly operated his machine as to injure the plaintiff's taxicab.

The accident occurred at about one-thirty o'clock in the morning at Broadway and Sixty-ninth street. Plaintiff's taxicab was crossing Broadway at Sixtyninth street when it was struck by the defendant's touring car going south on Broadway. The defendant was driving his own car with his chauffeur sitting by his side, and evidence was excluded by the court that at the time the defendant, who had been placed under arrest, was in an intoxicated condition. Under the provisions of the Highway Law, section 290, subdivision 3, the operation of a motor vehicle by a person in an intoxicated condition is expressly prohibited, and an innocent party injured in consequence of a violation of this statute is entitled to his civil

Misc.] Supreme Court, Appellate Term, December, 1914.

remedy for damages. Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 532. The evidence was material on this ground, and it had a further bearing on the defendant's negligence by reason of the disinterested testimony of the witness, Burt. He testified that the touring car was going down Broadway in a "wabbly condition, and that it was running at the rate of from fifty-five to sixty miles per hour; that the taxicab was going east across Broadway, and that when it was near the center of the street it was struck by the defendant's car, and that no collision would have occurred if the defendant had directed his car to the rear of the taxicab.

SEABURY and BIJUR, J. J., concur.

Judgment reversed, new trial ordered; costs to appellant to abide event.

MARY LOUGHRAN, as Administratrix of the Goods, Chattels and Credits of JAMES LOUGHRAN, Deceased, Respondent, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant.

(Supreme Court, Appellate Term, First Department, December, 1914.)

The evidence in an action to recover on an industrial policy of life insurance, considered, and held, that substantial justice required the reversal of a judgment in favor of plaintiff, as against the weight of evidence.

Judicial notice taken of the fact that patients suffering from tuberculosis, and being treated in hospitals, do not ordinarily succeed in obtaining life insurance.

Seabury, J., dissents.