Washington v. Episcopal Church of St. Peter's

97 N.Y.S. 1072 | N.Y. App. Div. | 1906

Miller, J.:

Theplaintiff fell through ah elevator opening from the basement to' the sub-basement of a building owned by the' defendant, and brings this' action to recover damages for -personal injuries, alleging as the. basis of ■ negligence or breach of duty on the part of the defendant its failure to provide-the gate; or guards and trapdoors required by section 95 of the Building Code of the city of Hew York. The elevator was used for the hoisting of materials from the basement’"or siib-basemehtv-to the ground floor, Three years before .the accident the defendant had leased the portion- of "the premises including the first floor, basement' and- sub-basement to a ( . tenant who, with its snb-tenants, occupied the premises at the time of the accident. The record discloses and the court charged the jury that there was no proof that at the time the premises were demised there was a nuisance on them. The court, nevertheless, charged the jury that if the defendant was receiving the rent of premises which were in an unlawful condition it was liable for any injury resulting therefrom. It is unnecessary to consider the question discussed in the briefs whether proof of the violation of a city ordinance furnishes- proof or evidence merely of negligence, although this question seems to be settled adversely to the contention of the respondent (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488) because this judgment must be reversed for the want of any evidence tending to prove any fault or breach of duty on the part of the defendant. The defendant did not maintain this elevator, and in the absence of evidence tending to show a faulty condition upon the demise of the premises, it owed the plaintiff no duty. (Ahern v. Steele, 115 N. Y. 203; Sterger v. Van Sicklen, 132 id. 499.) We do not understand the respondent to question this rule ; instead, he urges that the evidence warranted the conclusion that the premises were demised in a defective condition. This contention cannot prevail in the face of the charge of the trial court to the effect that there was no such proof, and, moreover, we think the trial court was right in this respect, from which it follows that the motion for a nonsuit should have been granted.

The judgment and order should be reversed and a new trial ordered, costs to abide the event.

Hirschberg, P. J., Woodward, Gaynor and High, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.