8 N.Y.S. 51 | N.Y. Sup. Ct. | 1889
The defendant is the owner of a tenement-house in this city. The plaintiff is the wife of one of his tenants. She was injured while engaged in hanging clothes upon a line stretched across the roof of the house for drying purposes. At the time of the accident she was standing upon some wooden slats which had been placed over the tin roof for the accommodation of the tenants. One of these slats broke under her weight, and her foot went through, and was injured. There was no yard to the house, and this slatting was a substitute provided by the landlord for the common use of the tenants in drying their clothes. The rules applicable to public halls and stairways in such buildings here govern. The landlord is responsible for injuries to his tenants resulting from the dangerous condition of those parts of the building which he reserves for the common use, and over which he retains control, but only when he has been guilty of actual negligence with regard thereto. To bring him within this rule, “it must appear,” as was said in Henkel v. Murr, 31 Hun, 30, “that with some notice of the condition of things, or under some circumstances equivalent to notice, such asan unreasonable omission to ascertain the condition, he had failed to make the necessary repairs or changes called for by the condition or exigency.” This is the fair rule. That contended for by the appellant, namely, that the landlord is only responsible for some willful act or for fraud or for creating a nuisance, is too narrow, and is only applicable to a demise of the entire building; as in Jaffa v Harteau, 56 N. Y. 398, and Edwards v. Railroad Co., 98 N. Y. 245. There was evidence tending to show that the defendant’s agent, Hennessy, knew that the slat in question was rotten, and that he neglected to have a new one put in. The appellant’s criticism upon this testimony was for the jury. It was sufficient, if believed, to save the case and sustain the verdict. The charge upon which the jury retired was correct, and, but for an unfortunate incident which subsequently occurred, we would have had no difficulty in affirming this judgment. The incident to which we refer is disclosed in the printed case in these words: “The jury-then retired, and, after being out some time, sent the following written question to the court: ‘ Will the court please advise, viz.: Should Mr. Earle or his agent, Hennessy, or the plaintiff, neither be aware of any defect in the slat-work, and the accident occur, would the defendant be liable? ’ The court sent for the jury, and after they returned to the court-room, in the presence of counsel for both sides, instructed them further as follows: ‘The Court. The jury submits this question: “Will the court please advise, viz.: Should Mr. Earle or his agent, Hennessy, or the plaintiff, neither be aware of any defect in the slat-work, and the accident occur, would the defendant be liable?” The answer
Van Brunt, P. J., and Daniels, J., concur.