178 N.Y. 458 | NY | 1904
The action is for personal injuries. The complaint alleges that the defendant was the owner of a tenement house in the city of New York divided into separate apartments, one of which, on the upper floor, was rented by the plaintiff's husband and occupied by him and his family. It further alleges "that the defendant had and reserved to himself control of the roof and ceilings in said building and apartments therein, as well as other parts and portions of said building during all the times herein mentioned." It is also charged that the defendant negligently suffered the roof of the said building and the ceilings in the plaintiff's apartment to become and remain in so defective and dangerous condition that "by reason of the carelessness and negligence on the part of the defendant in permitting the roof of said building and the ceilings of said apartment to be and remain in a dangerous condition as aforesaid, a large piece of plaster or other substance from the ceiling in one of the rooms in said apartment occupied by plaintiff, fell and struck plaintiff on the head and back." To this complaint the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action.
The learned judge at Special Term overruled the demurrer, holding that while there was no sufficient connection pleaded between the condition of the roof and the falling of the ceiling, the allegation that the defendant reserved control of the ceiling was sufficient to render him responsible for its condition. The Appellate Division reversed the judgment below *461
on the ground that the liability of the landlord for a breach of his covenant to repair was simply ex contractu for the cost of the necessary repairs and not ex delicto for injuries inflicted thereby on the tenant or third parties. (Schick v.Fleischhauer,
The judgment of the Appellate Division should be reversed and demurrer overruled, with costs in all the courts, and that of the Special Term affirmed, with leave to the defendant, within twenty days, on payment of costs, to withdraw demurrer and serve answer.
O'BRIEN, BARTLETT and MARTIN, JJ., concur; PARKER, Ch. J., GRAY and VANN, JJ., dissent on opinion of PATTERSON, J., below.
Judgment reversed, etc. *463