Sherlock v. Rushmore

91 N.Y.S. 152 | N.Y. App. Div. | 1904

Woodward, J.:

Dr. J. P. Mooney was in possession of the premises at 118 Kent street, borough of Brooklyn, under a written lease on the 6th day of August, 1900. This lease made no provision for the landlord to make repairs, but the plaintiff, over the objection and exception of the defendant, was permitted to put in evidence a certain alleged oral agreement on the part of the defendant Rushmore, as one of the executors and trustees under the will of Morris R. Williams, deceased, to make repairs. The plaintiff, a relative of Dr. Mooney’s wife, was engaged as housekeeper for Dr. Mooney, and in going to the cellar, fell and was injured because of an alleged defect in the stairs. The ground of negligence is not that the defendant, in making repairs, did the work in a negligent manner, but that he failed to make any repairs. The learned court at Trial Term submitted several questions to the jury, and on the coming in of a verdict for $3,000 in favor of the plaintiff, set the same aside- and entered an order dismissing plaintiff’s complaint upon the merits. The plaintiff appeals.

I am of opinion, assuming that the defendant made the agreement alleged, that the plaintiff has failed to make out a cause of action, and that the complaint was properly dismissed. (See Frank v. Mandel, 76 App. Div. 413, 416, 417, and authorities there cited; Stelz v. Van Dusen, 93 id. 358.)

The judgment and order appealed from should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.