Rosenthal v. Seville

Plaintiffs' lessors leased from the defendant owner a store on the ground floor of the premises in question, which store extended beyond the rear wall of the building, making what is known as an extension, in the roof of which there were two skylights, and they in turn sublet the front easterly half of that space to the plaintiffs. The plaintiffs neither leased nor had access to said extension. The evidence shows that rain found its way into plaintiffs’ portion on June fifteenth after the place had been closed for the night, and this condition was not discovered until the following morning upon opening the store, on which last named day plaintiffs went up on the extension roof and saw the glass in one of the skylights cracked. And there was some evidence also to the effect that the leader was stopped up. This condition was communicated to Seville, one of the plaintiffs’ lessors. Plaintiffs further testified that on June twenty-fifth, ten days after the first wetting, a second rainstorm leaked into their premises and again damaged their goods and they again reported the matter to defendant Seville. Plaintiffs did not say in words how the rain reached their premises, except that the ceiling was dripping wet, and we must rely upon their theory that the rain leaked in through the broken skylight and thence onto their ceiling which was some distance removed therefrom. Plaintiffs further testified that after the damage to their goods on June fifteenth, they put whatever goods they had left in the store back in the places where the goods were during the first rainfall. As the case is presented, several questions arise: First. Was any negligence proved on the part of the defendants? Second. Were the plaintiffs themselves free from contributory negligence? Third. Was there any duty on the part of the defendant Delish Co., Inc., to repair the plaintiffs’ premises and what, if any, privity of contract existed between the landlord Delish Co., Inc., and these plaintiffs? The case went to the jury and a verdict was returned in favor of the plaintiffs and against the defendant Delish Co., Inc., for the full amount demanded in the complaint and exonerating the plaintiffs’ lessor, Seville & Jonas. Thereupon counsel for Delish Co., Inc., made the usual motions to set aside the verdict and to dismiss the complaint. This case seems to me to be very similar to that of Lichtig v. Poundt ( 23 Misc. 632 ) where a judgment in favor of the plaintiff was unanimously reversed by the Appellate Term on a very carefully considered opinion by the late Presiding Justice Beekman. In that case plaintiffs, as in the case at bar, claimed they had neither control of nor access to the extension roof and averred that the landlord had assumed the care of it. Let me quote from that opinion: “ The roof of the extension existed for no other purpose whatsoever than as an inclosure of the exten