289 N.Y. 387 | NY | 1943
Plaintiffs, wife and husband, sued Montefiore Hospital because of personal injuries suffered by the wife when she was struck by falling plaster in an apartment rented to and occupied by plaintiffs in a multiple dwelling owned by the Hospital. The Hospital impleaded defendant Hurwitz, lessee from it of the whole apartment building. Judgment went for plaintiffs against the Hospital and in favor of the Hospital against Hurwitz. Only the Hospital has appealed. The lease from the Hospital to Hurwitz of the whole building required tenant Hurwitz to keep the property in repair. It gave the landlord the right at any time to enter and examine the premises, it being covenanted therein, however, that *389 this provision did not obligate the landlord to make any repairs. Plaintiffs produced evidence that the injuries to the wife were caused by falling plaster in the apartment kitchen, and that, some time before the accident, plaintiffs had reported the defective condition of the plaster to lessee's agent, who did nothing about it. The only testimony for the defense was as to the terms of the lease from the Hospital to Hurwitz and as to the fact that the owner had no employees at the property.
Section
The question now to be answered is this: may a long-continued existence of a dangerous condition, actually known to the lessee of the whole building, justify a finding of constructive notice to the landlord who, absenting himself from the premises, and failing to avail himself of his contractual right of access to the apartments, remains in ignorance of a dangerous condition inside an *390 apartment? A negative answer to that question would, we think, in large part defeat the purposes of section 78.
In Weiner v. Leroco Realty Co. (
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS and CONWAY, JJ., concur.
Judgment affirmed. *391