Marston v. Frisbie

In the month of November, 1912, the plaintiff rented and took possession of the house known as 435 East 164th street, borough of the Bronx, New York, under a verbal agreement with defendant, who owned it, by which she became a tenant from month to month at a rental of $20 per month, and according to the testimony of the defendant he was to and did make all necessary repairs. It was a 1%-story frame house, with a basement, and had been built about 60 years. The kitchen was in the basement, and access thereto was obtained by descending a flight of steps from the front yard. The greater part of the surface of the front yard was paved. The opening for the stairway extended out from the house about 3 feet, and was 4 feet in length along the side of the house. The first landing was from 12 to 17 inches below the surface of the yard, and it extended 3 feet out from the house and 4 feet along it, and was paved with brick. From this landing steps led down along the side of the house to the basement entrance. Some five or six years before the accident, a wooden box or step had been placed on, this landing by the authority of the defendant tO' form a step from the surface of the yard to the landing. The evidence tends to show that the box step was from 22 inches to 4 feet long, about a foot in width, and 4 or 5 inches high, and it was placed in the angle formed by the line of the inner side of the front wall of the area leading into the basement and the landing. The evidence is not clear either with respect to the condition of the box originally or the manner in which it was secured, and some of the witnesses testified on this subject by indicating by objects in the courtroom. The fair inference from the evidence is, however, I think, that a box without a top was used, and was placed with the open top against the wall toward the street, and that it was fastened by driving nails into the mortar between the brick or stone at the sides and in the landing. There is evidence that the side of the box underneath had rotted away, and tending to show that the box step Became loose and would turn over when stepped on.

On the part of the plaintiff, who was 64 years of age, evidence was given tending to show that on the 4th day of December, 1913, while-she was endeavoring to descend from the yard into the basement, and

The plaintiff alleged that it was the duty of the defendant to keep the premises in repair, and, further, that the defendant voluntarily undertook to repair the steps, and made the repairs in ah unskillful, unworkmanlike, and negligent manner, and left the step in a defective, imperfect, and dangerous condition, and that the accident was caused by reason of the defective, imperfect, and dangerous condition of the step, due to the unskillful, unworkmanlike, and negligent manner in which it was repaired by the defendant. The attorney for the plaintiff, in opening the case, stated that he proceeded upon the theory that the repairs were made in an unskillful and unworkmanlike manner, and that such was the theory of the complaint, and at the request of the attorney for the defendant he stated, in effect, that he would proceed solely on the ground of negligence in making the repairs. The defendant, however, testified, in substance, that his brother, acting for him, “was to make all repairs” for plaintiff as a tenant, and defendant’s brother testified that on three occasions he made repairs oh the premises.

The court in the main charge instructed the jury that it was the duty of the landlord to keep the premises in repair, and that plaintiff’s claim was that defendant, on being notified of the defective condition of the step, undertook to repair it, but made the repairs in an unworkmanlike, defective, and negligent manner, and as the result of which she sustained the injuries, and further charged that plaintiff claimed that defendant was negligent “in maintaining those premises in the particular regard directly referred to in the testimony, namely, in maintaining this step in a defective condition, because, as you recollect, the plaintiff’s contention is that this oblong box or step was insecurely fastened,” and instructed the jury that it was the duty of the defendant to maintain every part of the premises “in a reasonably safe and secure manner, with due regard for the limb and the life, and the health of the persons residing there as tenants.”

At the close of the charge in chief, the attorney for the defendant duly excepted to the instruction that it was tlie duty of the defendant to maintain the premises in a reasonably safe condition, and thereupon the court instructed the jury that, if they believed that the defendant “was under a duty to take care of those premises, then he is responsible,” and exception was duly taken to this further instruction. The court then instructed the jury, at the request of attorney for the defendant, that the landlord could not be held liable for fail

[1] The learned counsel for the respondent endeavors to sustain the recovery on the theory that the jury must have found that the defendant was negligent in repairing the step and made it more dangerous, and that the injuries sustained by plaintiff were directly due thereto. No claim is now made that any duty devolved on the landlord to keep the premises in repair or to repair the step. The rule is well settled that the landlord, in the absence of an agreement to make repairs, is under no obligation so to do, and that liability cannot even be predicated on his promise to repair, which in such circumstances is without consideration, and the only theory on which there,could be liability is that, having volunteered to repair, he was negligent with respect to the repairs he attempted to make, and increased the danger, and that the damages were, the direct result of his acts. Wynne v. Haight, 27 App. Div. 7 , 50 N. Y. Supp. 187 ; Zelzer v. Cook, 62 Misc. Rep. 471 , 115 N. Y. Supp. 173 ; Salvetta v. Farley, 123 N. Y. Supp. 230 ; Blake v. Fox, 17 N. Y. Supp. 508 ; 24 Cyc. 1116, 1117. The learned counsel for the appellant contends that, since the landlord was under no obligation to make the repairs, it cannot be maintained on this evidence that his efforts in attempting to secure the step resulted in making it more dangerous and caused the injuries to the plaintiff.

[2] I am of opinion that a recovery cannot be sustained on the theory on which the question was finally submitted to the jury. The defendant, on the theory that he was under no obligation to make repairs, would not have been liable, if he had left the box step entirely loose and the plaintiff had been injured while using it in that condition. The evidence does not show, or justify an inference, that what the defendant did, if anything, in attempting to secure the box step, rendered it more dangerous. On the contrary, the evidence on the part of the plaintiff indicates that" the box step was made more secure by the acts of the defendant. Since the defendant was under no obligation to repair the step, and what he did in the premises was purely voluntary, he could only become liable if the accident resulted from his acts. Perhaps the recovery might be sustained, if it had been the duty of the defendant, in undertaking to repair the step, to make

It follows that the judgment and order should be reversed, and verdict set aside, and complaint dismissed, with costs to appellant. Settle order on notice. All concur.