44 N.Y.S. 649 | N.Y. App. Div. | 1897
This action was brought to recover damages for injuries sustained on the 10th of October, 1892, upon the roof of the tenement house No. 51 Catherine street, in the city of New York, of which premises the defendant was the owner. The plaintiff, who was an unmarried woman, occupied rooms on the top floor -of the house with her father and mother. Upon the roof was a slatting made in- sections placed close together, the top of which was about 18 inches above the roof. There were also poles erected, ■to which lines were attached, to be used by the tenants of the premises in drying clothes. The door leading out to the roof was always kept unlocked, as required by law. On the night of October 10, 1892, a display of fireworks took place on the Brooklyn bridge, as part of the Columbian Celebration; and to.view this .display the plaintiff, about 8 o’clock in the evening, went upon the roof. There were on the roof about 50 people, some of whom were tenants of the premises in question, and others were strangers who had come from adjoining roofs. As the plaintiff was attempting to go down from the roof, one of the slats gave way under her, and she sustained a dislocation of the ankle. In addition to the foregoing facts, the plaintiff offered proof tending to show that the roof in question was used by the tenants during the evening for the purposes of recreation, some of them in the hot weather even sleeping upon the roof, and that this was a custom which existed among .the tenants to the knowledge of those who were in charge of the premises. Evidence was also given upon the part of the plaintiff .as to the condition of the roof, showing that it was in bad repair, which was obvious to anybody who went upon the roof; but the plaintiff testified that, notwithstanding that she was frequently on the roof, she did not observe its condition as to repair. Upon the part of the defendant evidence was given tending to show that .at the time of the happening of the accident, or prior thereto, repairs were being made to the roof which were not completed; and that the létting of the premises in question was by the janitress, who testified that the roof was not let for any other purpose than for the drying of clothes. She says:
“I let all the apartments. They dry clothes on. the l-oof. Mr. Wholey inquired where the clothes were to be dried, and I told him on the roof. The roof was not let by me for any other purpose than for the drying of clothes. I was not given any authority or instructions to let the roof of the premises for ■another purpose than for drying clothes. That is all.”
She further testified that the roof was in process of repair, and that it was all in order except the place where the accident happened ; that, after the tinman and the painters had left, the slats were being fixed and repaired; and that these repairs were going -on at the time of the happening of the accident.
At the conclusion of the evidence the objection seems to have been raised that, under the pleadings, the question as to the right -of the plaintiff to go upon the roof, as part of the premises rented, was admitted, and therefore there was no question to be submitted to the jury upon that point; and the court charged that, “where ■a building is let to several tenants as a tenement house, the roofs
Upon an examination of the answer it will appear that the construction which the parties gave to it during the progress of the trial was the correct one. The second allegation of tin; complaint was that three or four years previous to the accident the father of the plaintiff rented of the defendant certain apartments on the fourth floor of the building, together with the privilege of using the hallway, stairs, and roof of said house in common with other tenants in said house for an agreed rental, etc.; and that at all times since her father was in occupation and possession of said premises, with the privilege of using the stairways, halls, and roof under the terms of said hiring from defendant, and that during the same period the plaintiff resided with her father in the premises aforesaid.
It seems to us, upon a consideration of these allegations, that the question of the right of the plaintiff to be upon the roof upon the occasion in question was clearly put in issue. It is true that the answer admitted the right of the plaintiff to use the stairways,. halls, and roof under the terms of the.hiring from the defendant; but there was certainly no intention of admitting or alleging any exclusive right in the stairways, halls, and roof, or that they could be used for any other purposes than such as the terms of the letting either expressly or impliedly included. And, when this is followed by a denial of the right of the plaintiff to be there, it seems to us that it clearly put in issue the question as to the fight of the plaintiff to be upon the roof, which was, as already stated, the construction placed upon the pleadings by the parties themselves during the progress of the trial. Under these circumstances, it was error for the court to charge the jury, as it did in absolute terms, that the plaintiff had a right to be upon the roof. This error was radical, and certainly materially injured the rights of the defendant. We think that for this error the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
WILLIAMS, INGRAHAM, and PARKER, JJ., concur. O’BRIEN, J., not voting.