This action was brought to recover damages for injuries sustained by the.plaintiff by reason of the maintenance of a nuisance by the defendant. Plaintiff was walking on the sidewalk in front of premises 282-286 East Broadway, in the borough of Manhattan, city of New York, carrying а child in her arms, when the heel of one of her shoes caught in an open hole in the coal hole cover in front of said premises, causing her to fall to the ground. Defendant denies that it was a coal hole cover, but admits that it is a vault light, the openings in which were intended to be covered by glass. The testimony shows that there were three holes in the said cover, which was made of smooth iron; these holes were due to the absence of glass which should have covered them and their size was given as about three fingers in diameter. The dismissal is sought to be sustained upon the ground that at the time of the accident the premisеs were not in the possession and control of the defendant, the owner thereof, but of a corporation, the Pikewаy Realty Corporation, to which he had leased the same, and that there was no proof that the premises were in a defective condition when the lessee took possession thereof. As to the second ground, the lease to the Pikeway Realty Corporation, which is in writing, was made on January 15, 1913. The accident occurred on March 7, 1916. The trial took place on June 14, 1920. Joseph Krosonsky, a witness for plaintiff, testified that he saw the accident and
Furthermore, under the peculiar facts in this case as shown by the testimony of defendant’s witnesses coupled with the still more significant failure to make proof of the actuаl nature of the transaction between the parties, I think there was a question of fact for the jury as to whether the alleged lease was in fact a leasing or whether the instrument was only a document without force and effect, never intended to operate as a lease and never in fact operating as such, the defendant being the real party in control of the premises all the time. Ordinarily, proof of a lease under seal to a corporation which entered into possession of the premises thereunder would be sufficient to divest the owner of liability for whatever happened after the tenant took possession, particularly where, as in this lease, there was a covenant that the tenant should make all rеpairs both to the interior and exterior of
The judgment appealed from is reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Smith, Page and Greenbaum, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.