185 A.D. 41 | N.Y. App. Div. | 1918
On June 25; 1916, George Feneis lived with his wife and three children aged eight, six and a half, and five years respectively, upon the third or top floor of defendant’s building on New Utrecht avenue in the borough of Brooklyn. They had resided there from May 1, 1916. Shortly after five o’clock in the morning of June twenty-fifth a fire occurred in the house, and in attempting to escape through one of the front windows Mrs. Feneis fell to the street, receiving injuries which resulted in her death, and Feneis was himself injured. This action was brought by the administrator to recover damages for the death of his wife, and it is alleged in the complaint that the house was a tenement house three stories in height, built to be occupied as a home or residence by three or more families living independently of each other and doing their cooking upon the premises. The plaintiff alleges that it was the duty of the defendant, in accordance with the statute in such case made and provided, to have a direct way of egress accessible to each story either by outside fire escapes or by fire towers or such flights of stairs as are provided for in the Tenement House Law, and charges that defendant neglected to provide such safeguards and negligently, carelessly and wrongfully allowed the building to be without them prior to and at the time of the fire, and that the deceased was free from negligence. The defendant answered admitting his ownership of the premises and the tenancy of Feneis, denying the other allegations of the complaint. Upon the trial defendant admitted the happening of the fire and the death of plaintiff’s wife in attempting to escape, and the only question at issue was whether the defendant’s building was a tenement house under the law, the learned trial judge instructing the jury that if the building was not a tenement house there was no obligation on the defendant to maintain fire escapes. The judge also charged the jury that they were to determine whether
The difficulty presented by the appeal is that, I think, the learned judge erred in his definition of a tenement house under the law, and that he did not properly instruct them as to the question of fact presented by the evidence concerning the character of this particular house. ' The liability of the defendant for the death of plaintiff’s wife and the resultant recovery of damages depends entirely upon whether the defendant’s building was a tenement house, and the importance of a clear submission of the questions of fact involved is apparent.
First as to the learned judge’s definition of a tenement house. The definition is found in the Tenement House Law (Consol. Laws, chap. 61 [Laws of 1909, chap. 99], § 2, subd. 1, as amd. by Laws of 1912, chap. 13). The better course for the trial judge, in a case of this description, would have been to read the statutory definition to the jury and he might then go on to explain it or illuminate it in any proper way. Instead of doing this, he attempted to paraphrase it as follows: “A tenement house, for the purpose of this case, is any house or building or portion thereof constructed and let out to three or more families as a residence, living independently of each other and doing their cooking and other necessary housekeeping work,” and he immediately proceeded to discuss what in his opinion was necessary for housekeeping. He said there must be certain improvements; that there must be a “ toilet accessible or for the use of each of the three families in the house;” that while a bathroom was not indispensable, there must- be a “ toilet.” “ There must be room for cooking. There must be a place for the cooking, even though the tenant has to supply the stove upon which the cooking is done. There must be, as I say, water running into the apartment. Now, considering all those things, was this house so fitted that it could be or was, or was intended to be let out for three families living separately and independently and apart from each other? That is the question for you gentlemen to determine.” It will be perceived that .the trial judge, having discussed certain
The importance of correct definition and instruction as to what constitutes a tenement house under the law is emphasized by the peculiar facts presented by the record in the case at bar. Referring again to the statutory pro
But plaintiff offered evidence to show that this store floor had in fact been used as a residence. The Weisler family conducted a laundry in the store, and Mrs. Weisler testified that from February 22, 1914, to April 17, 1915 (fourteen months before the fire), she kept house in the rear room for her husband, herself and her child, and that despite the absence of ordinary household attachments she had a baby born in the room in question during the tenancy. While the birth of the baby is an important circumstance, still, considered alone, it would not constitute the room a residence or home, because we know that babies may be bom anywhere, stables, street cars and department stores, but she says the family slept and ate there. And a neighbor who lived in a house adjoining for ten or twelve years says the rear room was used “ as a kitchen ” when she first went there, by an Italian,
But the question of the intention of the defendant was not submitted to the jury, and no exception was taken and no request made to instruct the jury on this fundamental question, and the omission was accentuated by the trial judge in his charge, when he said: “ It does not 'matter that, at the time of this fire, there were only two families in the house. That is not the test of a tenement house, because there might be an apartment house for fifty families and all of them might
Again there was no exception to this instruction, although on the proof here, for the purpose of determining whether this particular house, laid out as shown by the plans, was “ intended, arranged or designed to be occupied ” as a home for three families, the fact that there were but two families in the house at the time of the fire and for fourteen months previous would seem to be material. This was not the case of a tenement or apartment constructed or used for “ fifty families; ” to such a building the remarks of the learned judge would apply.
I do not believe the law to be that a tenant renting a store can change the character of the building to that of a tenement house by surreptitiously using part of a store as a living apartment without the knowledge of the landlord. If the landlord on ascertaining the fact puts him out, I think he has shown that he is not a party to the illegal use. And another consideration: Even admitting that the rear room had been used for living purposes contrary to the law, with the landlord’s knowledge, it seems to me that when the landlord put the tenant out fourteen months before the fire, the premises remaining vacant all that time, the jury might well infer that notwithstanding his past transgressions he had reformed. I think these things should have been submitted to the jury in this case. Whether, if the issue was properly submitted to a jury, the verdict would have been different, I do not know, but I am impressed with the feeling that defendant has been adjudged guilty of negligence resulting in the death of a human being, and besides mulcted in damages in the sum of $10,000, on a submission of the case which did not present to the jury the real question upon which his liability must be based. It' is a serious matter for the plaintiff and for the defendant.
Under the facts as presented in this case, the issue was whether the defendant’s building was “ intended, arranged or designed to be occupied, in whole or in part, as the home or residence of three families ”' (Tenement House Law, § 2,
The judgment and order are reversed and a new trial granted, costs to abide the event.
Mills, Putnam and Jaycox, JJ., concurred; Blackmar, J., concurred in the result, holding that the intent mentioned in the statute does not mean the intent in the mind of the owner, but rather the intent to be inferred from the construction and arrangement of the premises.
Judgment and order reversed and new trial granted, costs to abide the event.