p. 402William J. Washington, Respondent, v. Episcopal Church of St. Peter’s, Appellant.Headnote
Negligence—injury to plaintiff .by fall through, .unguarded elevator shaft on demised premises —failure to show negligence of lessor.The plaintiff'fell down an unguarded elevator shaft of a building and was .injured. At the time the building was in the possession of a tenant and subtenant. In an action against the lessor for. "damages, no proof was given-.that at the time the lease was made the defect in thd elevator shaft existed.
Held, that a n'onsuit should have been granted, ‘as the defendant did not maintain the elevator and there Was no evidence to shpw a faulty condition of the premises at the time of the lease, thereof.
Appeal by the defendant, the Episcopal Church óf St, Peter’s, from a' judgment of the County Court óf Westchester county in fa.vor of the plaintiff, entered in the office of the clerk of t'he county of Westchester on the 24th day of Hay, 1905,. upon'the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 22d. day.of May, 1905, denying the defendant’s motion fora new trial made upon the minutes. ...
Stephen O. Lockwood, for the appellant.
Ira Leo Bamberger [Abraham Oberstein with him on the brief] for the respondent.
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 ( .
p. 403tenant 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.