Hyperlawhypertext legal database Gelb v. Silverman 150 N.Y.S. 485

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Gelb v. Silverman

150 N.Y.S. 485 Court Argued November term, 1914, before LEHMAN, DELANY, and WHITAKER, JJ. Decision date 1914-12-17 English

Delivered by WHITAKER, J.

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p. 485
GELB v. SILVERMAN et al.
(Supreme Court, Appellate Term, First Department.
December 17, 1914.)

Headnote

Landlord and Tenant (§ 167[1] )—Landlord’s Liability—Control of Premises—Nuisance.
An owner and lessor of premises, who surrendered full possession to the lessee and retained no control, and who under the lease was under no obligation to make repairs, was not liable to one injured by a hoist put in by the lessee.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Jacob Gelb, an infant, by Rosie Gelb, his guardian ad litepi, against Samuel Silverman and others. From a judgment for plaintiff, after trial before the court and a jury, defendant Aaron Cohn appeals. Reversed, and new trial granted.
Argued November term, 1914, before LEHMAN, DELANY, and WHITAKER, JJ.
Nathan B. L. Cosel, of New York City, for appellant.
Isidore Lowenbraun, of New York City, for respondent.

The action was brought by plaintiff, an infant of the age of 11 years, through his guardian ad litem, to recover damages for personal injuries sustained by him on July 21, 1913, in the premises 102-110 Attorney street, Manhattan, New York City, against all of several defendants, some of whom were partners in a business, as tenants, also the Attvington Realty Company, as lessee, and Aaron Cohn, the owner of the premises. The said tenants defaulted. The Realty Company and Cohn defended the action. The only party defendant to appeal from the judgment is the appellant, Aaron Cohn, the owner of the premises.

The plaintiff testified that on July 21, 1913, at about 1:30 o’clock p. m., he was walking up the stairs leading from the ground floor to the first flight up of the premises known as 102-110 Attorney street, going to a school which was held on the floor, one flight up from the street; that when walking up the stairs, and having his hand on the banister, a large bundle of goods fell from the third floor and struck him on his right forearm, breaking the arm. The staircase wound around an opening, and through this opening goods were hoisted to the various floors above. Ropes hung down from a drum at the top, through the opening. This rigging was operated by hand.

The appellant was not in control of the premises at the time the accident occurred. This is admitted by the plaintiff in his complaint. Appellant’s liability is therefore dependent upon the question whether, at the time he surrendered the entire possession of the premises to the lessee, a nuisance existed. Appellant’s witness testified that the lease was executed in 1904, and that the hoisting machine which constituted the nuisance complained of was installed by witness’ order

p. 486
in 1905. In ordering the hoisting machine, the witness was acting as agent for the lessee, not on behalf of the appellant. This testimony is uncontradicted. As no nuisance existed when entire possession of the building was surrendered to the lessee, and as under the conditions of the lease the owner was under no obligation to make repairs, the appellant cannot be held liable. Uggla v. Brokaw, 117 App. Div. 586 , 102 N. Y. Supp. 857 ; Ahern v. Steele, 115 N. Y. 203 , 22 N. E. 193 , 5 L. R A. 449 , 12 Am. St. Rep. 778 . The judgment against the defendant Aaron Cohn should be reversed.

Judgment against defendant Aaron Cohn reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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