An action for damages for personal injuries by a tenant against his landlord cannot arise out of a breach of the landlord’s agreement to repair (Chaplin on Landlord and Tenant, § 477; Schick v. Fleischhauer, 26 App. Div. 210). The case seems to be the same as if a mechanic had agreed with the tenant to do the repairs and failed. He would not be liable for damages for personal injuries caused by his breach of agreement. This action is not for a nuisance, nor does the testimony make out a ease of nuisance. It seems to me that the decision in Van Tassel v. Reid (36 App. Div. 529) is also in point, although a contrary suggestion is made because of the following qualifying, clause in the opinion: “Ho evidence appears in the case that the cover t© the cistern was originally defective, or that it was in this condition, at the time that the property was put in the possession of the plaintiff’s husband. The decay, in so far as there is any evidence upon the question, occurred during the time that the family of the plaintiff was occupying the premises,” &c. In the present case the want of repair was there at the time of the letting. This observation in the opinion, however, is based on an extract from the opinion in Swords v. Edgar (59 N. Y. 28); but that was the case of a public dock, in which the rule was the same as in cases of public highways and the little highways of tenement houses (i. e., the halls and stairways), and can of course have no application to the present case. The Court of Appeals never thought of its words in that case being applied to a case like the present. A like suggestion applies to the case of Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245). where the letting was of a public place for public amusements. Such cases cannot be cited as applicable to the ordinary relation of landlord and tenant. There is a duty in such cases outside of any Contract obligation. .. . ..
The verdict is set aside, and the motion to dismiss the complaint is granted.