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Jones v. Brumme

120 A.D. 494 Court Second Department, Decision date 1907-06-07 English

Delivered by Hooker, J.;

Contents

Majority

p. 494
Cecelia Jones, Respondent, v. Alfred Brumme, Appellant.
Second Department,
June 7, 1907.

Headnote

Landlord and tenant—when landlord not liable for injuries to third person. '
A landlord who surrenders entire possession to a tenant under a lease riot requiring the landlord to make repairs is not liable for injuries caused to a third person by the breaking of a cellar door through failure .to repair.
Appeal by the 'defendant, Alfred Brumme, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Kings on the 20th day of June, 1901, upon thé verdict of a jury for fifty dollars, and also from an ordér entered in said clerk’s office on the 19th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.
p. 495
John F. Brush, for the appellant.
James W. Ridgway, for the respondent.

The defendant was the owner of premises from which a cellar door inclined to the sidewalk. The plaintiff, to avoid a mudhole in the sidewalk, stejoped up seven inches upon the cellar door, which gave way and she was injured. She has had' a verdict against the owner, who ap>peals from the judgment entered thereon. At the-time of the accident the entire premises were in possession of a tenant, under a lease which did not provide that the owner should make repairs; the possession had been of more than.four years’ standing. No claim was made upon the trial that the construction of the cellar door was inadequate or negligent; the plaintiff based, her claim upon failure to repair.

The defendant, the owner, is'not liable in this case. As between him and his tenant, he was under no duty to make repairs, the lease containing no covenant to that effect. (Witty v. Matthews, 52 N. Y. 512 ; Clancy v. Byrne, 56 id. 129.) In Trustees of Canan daigua v. Foster ( 156 N. Y. 354 , 361), where a grate actually in the sidewalk itself had caused injury because of its being out of repair, it was held that upon the transfer by the owner of entire possession of the. premises to an'other, the duty to repair would be cast upon the grantee, and this language is used : “ So a lease of the entire1 premises and possession thereof by the .tenant, would doubtless throw the burden upon the latter. (Shearman & Redfield on Negligence [5th ed.], §§ 710, 713.) * * * If he” (the owner) “ parts with the premises, or parts with the possession thereof for a period, the burden falls on his successor in title or possession.”

The judgment and order should be reversed.

Jenks, Gaynor and Miller, JJ., concurred; Rich, J., concurred in result.

Judgment and order reversed and new trial granted, costs to abide the event.

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