Majority
p. 91CASEY a. MANN. New York Superior Court ; Special Term, March, 1857.
Headnote
Failure to Repair.—Mode of Alleging.A complaint against the owner of premises leased to a third person, to recover damages sustained by plaintiff by the falling of a part of the building through want of repairs, is bad on demurrer, unless it states facts from which the court cay say that the owner was bound to keep the premises in repair.
A mere general allegation that defendant was bound to keep the premises in repair is insufficient.
Demurrer to complaint.
This action was brought by Catherine E. Casey, by her guardian, against Francis Mann. '
The complaint stated that the plaintiff received great injuries on her head and back by the giving way and falling down of a back stoop and stairs on a certain building owned by the defendant ; that the said stoop and stairs were in a bad condition of repair, and had been provided by the defendant for the access of the residents of the premises to a back yard, and that the plaintiff, as one of those residents, was entitled to their use.
The complaint then averred that the defendant, as owner, was bound to keep the premises, and especially the said stoop and stairs, in good condition and repair, and had neglected and refused to do so, and that in consequence of such neglect and refusal, the plaintiff has sustained the injuries, specifying them, complained of. Judgment was demanded for $5,000 as damages.
The defendant now demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
I am obliged, with some reluctance, to hold that the demurrer is well taken. The averment that the defendant was bound to repair is plainly insufficient. It is the averment of a conclusion of law, and no facts are stated from which the court can say that the obligation to repair resulted. The complaint, as I construe it, admits that the premises were occupied,
p. 92
not by the defendant, but by third persons, and consequently it was upon them as tenants, and not upon the defendant as owner and landlord, that the duty of keeping them in good condition and repair presumptively rested; and it is not alleged there was any special agreement by which the relative duties of the parties were altered. Upon this point, the decision" at general term of this court, in Howard a. Doolittle ( 3 Duer, 164 ), is a conclusive authority. The averment of the defendant’s neglect and refusal, as the duty is not shown to have been imposed upon' him, is immaterial.
Judgment for defendant, unless plaintiff, within twenty days, serve an amended complaint, and pay costs of demurrer.