158 N.Y.S. 465 | N.Y. App. Term. | 1916
The action is by a tenant of a flat in a tenement house to recover damages for personal injuries sustained through the fall of a portion of the ceiling in her kitchen, alleged to have resulted from the negligence of defendant. Plaintiff testified that on Thursday night, March 12 or 13, 1914, she was awakened by the dripping of water; that she got up out of bed and found water dripping from the middle of the kitchen ceiling to the floor; that she put a pan on the floor to
It further appears from the plaintiff’s testimony that on the day her husband died, April fourth, moro than two weeks after the leaking had stopped, defendant called and was shown the ceiling, which was very badly discolored and chalky, and cracked where the water had dripped through; that defendant then said: “ Well, Mrs. Stevens, try and get through; don’t ask me to spend any more money than I can possibly help;” that on the morning of April seventeenth plaster fell from the kitchen ceiling on the plaintiff causing the injuries complained of; and that on the same day defendant called and, after saying she was sorry and that plaintiff deserved compensation, told plaintiff ‘1 If any one comes here to make an investigation, I wish you would not say anything about the condition of the ceiling—-being caused by the leaking of the ceiling—being caused by the leak in the general supply pipe to any one.”
Although the evidence was unsatisfactory as to the specific' cause for the leaking it was sufficient in view ' of the defendant’s admission that the leak in her tenement house was from the general supply pipe (Tenement House Law, § 103) to show prima facie a defec
As the jury found that the unsafe condition of the ceiling was caused by defendant’s negligence it cannot be held that the failure of the plaintiff herself to make the repairs was as matter of law contributory negligence. Neither did the fact that she remained in possession constitute contributory negligence as matter of law. The jury were justified in finding that plaintiff as matter of fact was free from contributory negligence in view of the evidence so far as remaining in the premises after March thirty-first was concerned, that her husband was seriously ill during March, that he died early in April, and that apparently her circumstances prevented her from promptly removing from the premises. Frank v. Simon, 109 App. Div. 38.
It is urged that by continuing in possession after March thirty-first, and thus impliedly renewing her tenancy from month to month (Kennedy v. City of New York, 196 N. Y. 19), plaintiff must be held to have assumed the obligation of repairing the ceiling. While this would ordinarily be the rule as to a general condition of disrepair, under the facts in this case we do not think it applicable to a condition which the jury were warranted in finding was due to the negligence of the landlord—a condition which would seem to have been the result of a trespass on the part of the defendant. Mairs v. Manhattan R. E. Assn., 89 N. Y. 498; Sullivan v. Dunham, 161 id. 290; Duerr v. Consolidated Gas Co., 86 App. Div. 14; Wheeler v. Norton, 92 id. 368.
The exceptions to the charge do not present rever
Cohalan and Whitaker, JJ., concur. '
Judgment and order affirmed, with costs.