1 N.Y.S. 633 | N.Y. Sup. Ct. | 1888
The contents of the amended complaint in this action may be summarized as follows: The defendants Ogilvie and Ingersoll owned and controlled the premises 94 Sheriff street, in the city of Hew York, which consisted of a rear tenement house occupied by a number of tenants. Prior to April 22, 1887, they leased these premises to the defendants Hahn and Schumacher for a term of years. While the premises were in the possession of the defendants, (no particular defendants being specified,) certain rooms therein
The defendants Ogilvie and Ingersoll have demurred on the ground that the complaint does not state sufficient facts to constitute a cause of action, and have appealed from an interlocutory judgment atspecial term overruling their demurrer. The first impression gained from reading over the complaint is that the pleader intended to allege a letting of the entire premises by the defendants Ogilvie and Ingersoll to the defendants Hahn and Schumacher, whereby the former parted entirely with all control over the property; and that the letting to the plaintiff’s father was by the defendants Hahn and Schumacher alone. But the learned counsel for the defendant argues that the allegation in the seventh paragraph, that the premises were in the possession of the “defendants” when the rooms were let to the plaintiff’s father, mean’s-that they were in possession of all the defendants, and hence that all are liable for the condition of the platform which resulted in the plaintiff’s injuries. It, might be'said, in answer to this, that the complaint does not really allege a. letting by any of the defendants; for it does not necessarily follow, from the averment that the defendants were in possession of the premises when certain rooms were rented, that they themselves were the parties with whom the tenant made his contract. We will not dispose of the case, however, upon any such refinements, but will adopt the view most favorable to the plaintiff, which is that the complaint alleges a letting to the father by all the defendants. Assuming that the father thus stands in the direct relation of tenant to all the defendants, let us inquire whether they can be held liable for injuries to his child by reason of the unsafe, unguarded, and dangerous condition of the platform in front of his rooms at the time of the letting. It is not charged that the defendants knew, or had reason to know, the platform to be dangerous for any use for which they let it, and failed to disclose its condition, or that they had agreed to repair it, or make it safe, and omitted to do so. Hence they cannot be deemed liable under the rule which was applied in Carson v. Godley, 26 Pa. St. 111, where the defendant let a store-house with the knowledge that it was unfit for the uses to which thelessees manifestly intended to putit, and omitted to insert any word of caution or restraint ip. the lease. Hor can the defendants be regarded as negligent under the authority of Davenport v. Ruckman, 87 N. Y. 568, 574, where it appeared that there was an express agreement by the lessor to put the premises in repair, which agreement had not been kept, neither do the averments of the complaint suffice to make out such a condition of the platform as to amount to a nuisance, for the effects of which the defendants might continue responsible after the letting. A structure may be unguarded, and unsafe and dangerous for the use of a child, and
Van Brunt, P, J., and Macomber, J., concur.