Gelof v. Morgenroth — 109 N.Y.S. 880

Majority

p. 880

GELOF v. MORGENROTH et al.

(Supreme Court, Appellate Term.

April 10, 1908.)

Headnote

Landlord and Tenant—Dangerous Condition of Premises—Injuries to Third Persons.

A lessee of a store agreed to take care of the premises, keep them in repair, and deliver them tip to the landlord in good condition, and to comply with the regulations of the city for the abatement of nuisances or other grievances on or connected with the premises. The landlord made no covenant to repair. There was an iron grating beneath a window in the store, for the purpose of admitting light and air into a portion of the cellar under the store, which was under the lessee’s control. Seld, that the area and grating were appurtenant to the store and cellar under the control of the lessee, and the landlord was not liable for injuries to a third person caused by defects in the grating.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 668-670.]

Appeal from City Court of New York, Trial Term.

Action by Morris Gelof against Jacob Morgenroth and another. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and SEABURY and DAYTON, JJ.

Carl Schurz Petrasch (Solomon J. Bischoff, of counsel), for appellants.

I. Henry Harris, for respondent.

The plaintiff brought his action to recover damages for the loss of services of his infant daughter by reason of injuries alleged to have been caused by the negligence of the defendants. The plaintiff claims that while his daughter was standing in front of a show window in a saloon occupied by one Thomas J. Brennan, the defendants’ lessee, her foot caught in an iron grating beneath the said window, which grating was in a dangerous and defective condition. Brennan had leased the store in question, agreeing to take good care of the premises and pay for the plate glass insurance in the store front, to deliver up the premises to the defendants in good condition, and to comply with the city'regulations applicable thereto for the abatement of nuisances or other grievances in, upon, or connected with said premises. The landlords made no covenant to repair, while Brennan agreed to make all repairs in said store. The area covered by the defective grating was for the purpose of admitting light and air into the portion of the cellar under the store, which, it is conceded, was exclusively under Brennan’s control. Brennan had also erected a bootblack stand and a news stand, and the former was placed at times over the grating in question. It would seem that this area and grating were appurtenant to the store and cellar, and under Brennan’s control. Curran v. Flammer, 49 App. Div. 293 , 62 N. Y. Supp. 1061 , appears to be decisive in appellants’ favor.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.