Moody v. Mayor — 34 How. Pr. 288

Majority

p. 288

SUPREME COURT.

Moody agt. The Mayor, &c.

Headnote

An owner of real property is liable for injuries caused to third persons by its defects, notwithstanding the premises are at the time in possession of a tenant, if the defects existed when the tenant took possession.

Note.—The case of Little agt. JDenn, ante, page 68, we are informed should not have been reported; as at that term (June, 3864), the judges of the court of appeals were equally divided on the case, and a re-argument was ordered, and afterwards, at the January term, 1866^ upon such re-argument, the judgment of the supreme court was reversed, and the case as thus decided is reported in 34 N. Y. R. 452. Through some mistake probably, Judge Johnson’s opinion was published in the newspapers, from which we took it as an unreported cafe.

The case of Batterman agt. Finn, ante, page 108, is a dissenting opinion, instead of the opinion of the court, which is reported 32 How. 501 .—Rep.

General Term, May 6, 1865.

Before Clerke, Sutherland and Ingraham, Justices.

Hone of the cases cited by the counsel for the defendant are available for him. On the contrary, Cheat-ham agt. Sampson (4 Term. R. 318) is against him. A case (Rosewell agt: Prior, Salk. 460) was cited by counsel, to show that an action was maintained against the owner of premises, who was not. in possession, for a nuisance in making an erection which stopped ancient lights. Buller, J., in delivering his opioion in Cheetham agt. Sampson, refers to Rosewell agt. Prior, and remarks that it was very distinguishable from the case then under consideration. “For there,” he says, “the owner let the premises with the nuisace complained of, which had been before erected upon them.”

The injury to the plaintiff in the present case arose, not from any want of repairs arising out of the use, but from the defective construction and dangerous condition of the pier. The defendants, the owners, let the pier “with the defects complained of,” and are, consequently liable for the injury sustained by the plaintiff. .

There should be judgment for the plaintiff on the verdict,. with costs.

Sutherland and Ingraham, Justices, concurred.