108 N.E. 190 | NY | 1915
In January, 1911, the Tilyou Realty Company leased to Samuel Jankelson for fifteen years an amusement park, with its pavilions and other fixtures, at Rockaway Beach. The park was laid out with streets, and included a board walk about 2,000 feet long. This *407 board walk was built upon piles which were driven into the sand. The tenant Jankelson agreed in the lease not to use the premises for any other business than that which was then conducted there, or one substantially the same. He also agreed that the walks and streets would be kept clear and open as thoroughfares. Four months later, on April 22, 1911, he sublet the premises for ten years to his wife and two business associates. There was a like covenant as to the use of the premises and a like covenant that the walks and streets would be kept clear and open as thoroughfares. On the same day the sublessees assigned their lease to the Jankelson Realty Company. Samuel Jankelson is president of that corporation, and one of its chief stockholders. In August, 1911, there was a baby parade at the park. During the parade a part of the board walk collapsed, and the plaintiff, a little boy, who was a spectator, suffered injuries for which he sues. He recovered a verdict against both Jankelson and the Jankelson Realty Company. At the Appellate Division the judgment against Jankelson was reversed, and the complaint as to him was dismissed. The plaintiff appeals to this court.
The property as Jankelson sublet it, was intended for public use. It was not suited for anything else. No one foresaw this use more fully than Jankelson himself. He had covenanted with his own lessor that the walk would be kept open as a thoroughfare, and he exacted a like covenant from his own lessees. He knew that the need of maintaining the walk in safety was as great as if it had been dedicated as a public highway. He was himself to profit from the use which he had in view, both as a landlord in receipt of rent, and as a stockholder interested in the company which was to maintain the park. In this situation, if there existed when he made his lease a dangerous condition that was known to him, or by reasonable inspection might have been known, the law charges him with liability. It has been said *408
that in the absence of fraud (Steefel v. Rothschild,
We think there was evidence in this case that the dangerous condition antedated the lease, and that reasonable inspection would have disclosed it. The collapse of the walk was due to the decay of a supporting pile. The decay had progressed so far that the wood, when examined after the accident, crumbled in one's hand. There is evidence that this decay could not occur in less than five or six years. There was thus an opportunity to learn of the condition of the walk. Not only was there this opportunity for knowledge, but the evidence tends to show that the walk was in fact known by Jankelson to be in a condition of decay. Even before he made his lease, he had *410 employed men to repair it, but they did not do their work till later. Accepting the testimony of the defendant's witnesses, we find, not a single decayed timber as the defendant's argument assumes, but a multitude of them, with the result that the walk must have been at the date of the sublease in a ruinous condition. Many of the defective timbers were removed, and sound timbers substituted. The one that caused the accident was apparently overlooked. There is evidence that its defects, like those in the other timbers, might have been discovered by tests commonly in use. If Jankelson knew or ought to have known of its condition, his duty was to end the danger before he leased the walk for public use, and if he failed to do this himself, he continued liable till it was done by others. He did not by his lease prohibit the use of the property until repairs had been made. Whether he knew or ought to have known its true condition was a question for the jury.
The judgment of the Appellate Division dismissing the complaint imports a ruling that the plaintiff's case is deficient as a matter of law, and that ruling, since it involves a final determination of the action, we have jurisdiction to review. But even though his case has not failed as a matter of law, the Appellate Division may say that the weight of evidence is against him, and as to that its jurisdiction is exclusive. It has not yet passed upon that question, for its decision that the judgment was erroneous as a matter of law was not accompanied by a statement that the judgment was affirmed upon the facts. To reinstate the verdict of the Trial Term would thus deprive the defendant of his right to a review of the facts, and to the privilege of a new trial if in the view of the Appellate Division the weight of evidence is in his favor. (Wright v. Smith,
The judgment, so far as appealed from, should be reversed, and the case remitted to the Appellate Division for its consideration of the facts.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, HOGAN, MILLER and SEABURY, JJ., concur.
Judgment accordingly.
