George AVLON, Appellant, v. GREENCHA HOLDING CORP., Appellee, 239 F.2d 616

SWAN, Circuit Judge. This is an action to recover for personal injuries sustained by the plaintiff by reason of the collapse of an iron grating, on which he was standing, attached to the outside of a building owned by the defendant. The action was commenced in a court of the State of New York and was removed to the federal court on the ground of diversity of citizenship. At the close of the plaintiff’s case, the court granted a motion by the defendant to dismiss the complaint for failure to prove a prima facie case.

On appeal it is contended that there were issues of fact which should have been submitted to the jury. The correctness of this contention turns on whether there was evidence on which the jury could have found that the plaintiff had the status of an invitee rather than a bare licensee while standing on the iron grating; and the answer to this question is controlled by New York law, since federal jurisdiction rests on diversity. The plaintiff was a cook employed by a cafeteria company which occupied as lessee the first floor and basement of defendant’s two story building located at 3195 Broadway, New York City.

The dining room of the cafeteria was separated from the kitchen by a wall or partition through which was a connecting doorway. The main entrance to the dining room was from the street level of Broadway. In the rear wall of the dining room was a door marked “Exit,” with a red electric light above it. At the rear of the kitchen was another door similarly marked and lighted. Each of these “Exit” doors opened onto an iron grating or platform which was affixed to the outside of the building.

The platform was approximately 5 feet wide and 35 feet long and was suspended over an areaway some 25 feet below the floor level of the cafeteria. No steps led from the platform to the ground but at one end of the platform iron stairs led to the roof of an adjacent building. From the roof other stairs led to a rear doorway into a bowling alley which was located in the second story of the defendant’s building. At the front of the building there was an entrance from the street to the bowling alley used by customers.

On the date of the accident, June 1, 1948, the plaintiff had gone from the kitchen to the dining room, using the doorway in the partition which separated them. On leaving the men’s wash room, which is in the dining room, he went through the “Exit” door in order to “have a smoke” and “get some fresh air.” As he proceeded along the platform to return to the kitchen a

section of the iron grating collapsed under his weight and he was precipitated to the areaway below. There was testimony that the plaintiff had used the platform similarly on three or four prior occasions; that other employees sometimes so used it; that patrons of the cafeteria occasionally used the platform and fire escape stairs as a way of reaching the bowling alley; and that the president of the defendant had the opportunity to see such use. He denied knowing that either employees or patrons of the restaurant ever used the fire escape. No proof was offered as to what caused a

section of the platform to collapse. The plaintiff testified, as did also the president of the defendant, that the platform appeared to be in good condition. Without a formal opinion the trial judge, upon argument of the defendant’s motion to dismiss, ruled that the evidence proved that the plaintiff was no more than a bare licensee while using the outside platform, and, as such had established no right to recovery, since the defendant was guilty of no affirmative act of negligence. Under New York law the ruling was correct.

We can find nothing in the evidence which could support a jury’s verdict that the plaintiff was an invitee. The outside structure was not within the premises leased to the plaintiff’s employer. The lease, which was the “Standard Form of Store Lease” of the Real Estate Board of New York made no reference to it.* At best the jury could have found no more than that the landlord had notice that the tenant’s employees and patrons occasionally used the platform as a passageway or as a place to smoke and get a breath of outside air, and acquiesced therein without protest.

But there is no evidence of any invitation or inducement on the part of the landlord to make such use of it, and mere consent to such use does not indicate that the plaintiff was an invitee. The existence of the “Exit” signs with red lights above showed clearly that those doorways were intended for emergency exists to the fire escape; they could not reasonably be found by the jury to serve as an invitation to use the platform as a passageway except in case of emergency.

The plaintiff knew it was a fire escape, and in an affidavit reporting the accident said he “fell through fire escape platform.” The platform had no steps leading to the ground but did lead to the roof of an adjoining building, and the only purpose it could have had was to provide an escape in case of need. Indeed, it conformed to the statutory definition of a fire escape in section 4(16), Multiple Residence Law of New York, McK.Consol.Laws, c. 61-B. Vega v.

Lange, supra, note 3, held squarely that the use of a fire escape for other purposes, with the owner’s knowledge and consent, does not make the user an invitee. A Court of Appeals case which strongly supports the ruling below is Walker v. Bachman, 268 N.Y. 294, 197 N.E. 287. There the plaintiff was the child of a tenant of the defendant, who owned a two-family house in the rear of which were two garages facing a cement space intended for use only for automobiles entering or leaving the garages.

The plaintiff’s father did not rent or use either of the garages and had no right to use the cement yard as appurtenant to the apartment leased to him. The cement yard was enclosed by a parapet 14 inches high. While playing with her brother in the yard the infant plaintiff stumbled over the parapet and sustained injuries. There was evidence that the children over a considerable period of time had, to the knowledge of defendant, played in the yard. The trial court submitted to the jury, over the defendant’s exception, the question whether the infant plaintiff was an invitee or a mere licensee.

The plaintiff had a verdict and the júdgment entered thereon was affirmed in the Appellate Division, 243 App.Div. 514, 276 N.Y.S. 1018. The Court of Appeals reversed and dismissed the complaint, stating that the child was in the back yard with the implied consent of the defendant, but she was there for her own purposes only and the defendant’s acquiescence did not become an invitation. It seems to us that Judge Pound’s gloss upon the distinction between “invitee” and “licensee” in Vaughan v.

Transit Development Co., 222 N.Y. 79, 82, 118 N.E. 219, still stands: “Long-continued acquiescence in such use does not become an invitation. The law does not penalize good nature or indifference nor does permission ripen into right.” See discussion in Carbone v. Mackchil Realty Corp., 296 N.Y. 154, 158, 159, 71 N.E.2d 447. The supposed departures from the rule as to the effect of acquiescence disappear upon analysis of the facts. In Murtha v. Ridley, 232 N.Y. 488, 492, 134 N.E. 542, 543, the “children of the tenants had used it [the enclosed space] as a playground. Tenants hung their clothes in it.

At one time the daughter of Mrs. Frankel planted flowers and vegetables in the yard. Mrs. Neach, the janitress, kept the yard and areaway clean and removed the debris. The tenants were obliged to go into the yard and fasten the lines to the clothes pole.” On this evidence the court said 232 N.Y. on page 493, 134 N.E. on page 543, that there was some evidence “establishing this yard as an appurtenance to this apartment house.” We understand by “appurtenance” a part of the premises the use of which was by implication affirmatively granted to the tenants. In Walker v.

Bachman, supra, [268 N.Y. 294, 197 N.E. 288] the facts of which we have just stated, the court said that the “child was in the backyard with the implied consent of the defendant; but she was there for her own purposes only, and the defendant’s acquiescence did not become an invitation,” citing Vaughan v. Transit Development Co., supra, and distinguishing Murtha v. Ridley, supra, because there the evidence “established the yard as an appurtenance to the apartment house.” Whatever “appurtenance” may mean, obviously it requires more than “continued acquiescence.” In Sil-verberg v.

Schweig, 288 N.Y. 217, 218, 42 N.E.2d 493, the following testimony, if believed, constituted an express invitation.

The plaintiff wished to connect an aerial between his father’s store and the defendant’s apartment, and to do so “he desired access to a fire escape platform on such multiple dwelling and to obtain such access asked the defendant Herman for a key to an apartment which abutted the platform; that such defendant could not find a key and told the infant plaintiff to go up on the roof of his father’s store and then onto the fire escape ladder.” The court held that this evidence created a case for the jury, citing Bowers v.

City Bank Farmers Trust Co., 282 N.Y. 442, 26 N.E.2d 970, 971, which had held that a child was an “invitee” upon the roof of an apartment house where, not only the tenants’ children habitually played and which the tenants used “as a place to dry clothes”— as in Murtha v.

Ridley, supra — but also where the janitor “on many occasions he dressed himself as a cowboy and came to the roof when the children were at play and there in their presence practiced at throwing a lariat and performed tricks with a whip.” Admittedly, it is always difficult to forecast what will be the position of the court of another jurisdiction; but it appears to us that up to the present time there has been no contradiction in the decisions of the New York courts as to the proposition that acquiescence alone is not invitation, and there is no evidence of anything more in the case at bar. Judgment affirmed. .

In his complaint the plaintiff refers to this structure as a “fire escape and platform which, with the knowledge and consent of the said defendant, was regularly-used by persons lawfully in and upon said premises as a passageway to and from divers parts or portions of the said premises.” . Paragraph 4 contains the statement: “Landlord has not conveyed to Tenant any rights in or to the outer side of the outside walls of the building of which the demised premises form a part, • * ia itg context the statement should doubtless be restricted to a prohibition against attaching signs, wires, etc., to the outside walls.

If relevant at all to the contention that the tenant had permission to use the platform as a passageway between the dining room andi the kitchen, its implication is adverse rather than helpful . In Vega v. Lange, 248 App.Div. 521, 290 N.Y.S. 736 at page 738 the court said: “The mere consent to the use to which the infant plaintiff put the fire escape did not indicate that she was an invitee,” citing as authority Vaughan v. Transit Development Co., 222 N.Y. 79, at page 82, 118 N.E. 219, in which Judge Pound said: “If plaintiff had had no permission to come on the premises he would have been a trespasser.

If he had been there by invitation or on lawful business of interest to both parties he would have been an invitee. But he was there by permission, for. his own convenience and his status was that of a bare licensee.”