| New York Court of Common Pleas | Feb 1, 1892
In legal effect, the relation between the plaintiff and defendant was that of landlord and tenant, and their respective rights and liabilities in the action are to be determined by that relation. The dumb-waiter being provided by the landlord for the common use of tenants, it was his duty “to use reasonable care to keep it in repair and suitable condition.” Peil v. Reinhart, 127 N.Y. 381" court="NY" date_filed="1891-06-23" href="https://app.midpage.ai/document/peil-v--reinhart-3622785?utm_source=webapp" opinion_id="3622785">127 N. Y. 381, 384, 385, 27 N. E. Rep. 1077; Ritterman v. Ropes, 51 N. Y. Super. Ct. 25; Tousey v. Roberts, 53 N. Y. Super. Ct. 446; Dawson v. Sloan, 49 N. Y. Super. Ct. 304, affirmed, 100 N.Y. 620" court="NY" date_filed="1885-10-27" href="https://app.midpage.ai/document/rollins-v--farley-3603162?utm_source=webapp" opinion_id="3603162">100 N. Y. 620. And that duty he cannot escape by delegating its performance to another, but is still responsible for its negligent performance by whomsoever he substitutes as his representative. Fuller v. Jewett, 80 N.Y. 46" court="NY" date_filed="1880-02-03" href="https://app.midpage.ai/document/fuller-v--jewett-3619754?utm_source=webapp" opinion_id="3619754">80 N. Y. 46, 52; O'Sullivan v. Norwood, 14 Daly, 286" court="None" date_filed="1887-06-27" href="https://app.midpage.ai/document/osullivan-v-norwood-6141445?utm_source=webapp" opinion_id="6141445">14 Daly, 286. FTor was the rigor of the obligation incumbent on defendant at all relaxed by the fact that he undertook the alteration of the dumb-waiter for the accommodation of his tenants; the rule being that, although the service was gratuitous, he was nevertheless liable for misfeasance in its performance. Coggs v. Bernard, 1 Smith, Lead. Cas. 375, 376. Such being the principle of the liability incumbent on defendant, these two corollaries are inevitable, namely: First, it is immaterial whether the man who made the alteration was a servant of the defendant or an independent contractor; and, secondly, it is immaterial also whether he had notice of the defective performance of the work. In contemplation of law, the work was his work, and so his liability for its negligent performance is absolute.
The only question, then, for determination is whether the evidence of negligence in the performance of the work was sufficient to take the case to the jury; for, if so, we are concluded by the action of the court below. The dumb-waiter being designed for a weight of 350 pounds, plainly a rope of considerable consistency and strength was necessary to its secure operation. And yet, instead of supplying a new rope, the defendant was content to “splice” the old one. That the splicing was the cause of the break is not controverted, and that the splicing was insufficiently and negligently done is supported by evidence abundantly adequate to sustain the verdict. The point that the negligence of the mother contributed to the child’s injury, though raised on the trial, is not pi esented by the argument on appeal. However, the issue was submitted to the jury by a correct charge, and their decision is sufficiently supported by the evidence. The apparent error in the charge as to the rule of damages was repaired by the subsequent explanation of the learned justice. We have no jurisdiction to reverse the judgment for the amount of damages, even if we deemed it excessive, which, however, is not apparent. Judgment affirmed, with costs. All concur.