Speckman v. Boehm

The defendant was the lessee of a building in the city of New York, the various floors of which he sublet to other tenants. In June, 1896, Alfred Stover hired the top floor of the premises by a written lease. At this time the basement of the premises was vacant. Stover testified that, as an inducement to lease the premises, the defendant told him he might have some shelving and other material in the basement with which to make partitions. This statement the defendant denied. Subsequently, Stover sent the plaintiff into the basement, to obtain the shelving. The basement was large, and rather- dark. While the plaintiff was at the far end of the basement, getting the shelving, he broke through some of the boards which constituted the flooring, and received the injuries which are the subject of this action. The evidence tended to show that these boards had broken because of their decayed condition, a decay probably caused by the conduct of the former tenant in allowing water to drip and stand on the floor. The only evidence to charge the defendant with notice of this condition was the testimony of a witness who accompanied the defendant and a third person, who contemplated leasing the premises, into the basement. This testimony was to the effect that the proposed tenant spoke of the floor not being in good condition, to which the defendant answered that, if he took the basement, he would repair the floor. This was about two or three weeks before

We are of the opinion that the evidence was insufficient to show negligence on the part of the defendant. The case is not at all similar to that of a store or shop which the owner invites the public to enter, nor to that of a factory or workshop which the owner is bound to see is safe and secure for persons entering upon business or in the discharge of their employment. We are inclined to the opinion that the plaintiff is to be considered as no more than a licensee. The written lease gave Stover no right to enter the basement, nor to take the lumber; and therefore the right given him by the defendant must be considered a mere privilege to be exercised for Stover’s own benefit. “The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” Camp. Neg. § 33, cited with approval in Bennett v. Railroad Co., 102 U. S. 577 . If the plaintiff is to be regarded as a mere licensee, it is clear that the defendant was not answerable for the unsafe condition of the premises, unless such condition was in the nature of a trap, and the defendant was aware of that condition. He was not responsible for negligence, passive, not active, nor of omission, and not of commission. Larmore v. Iron Co., 101 N. Y. 391 , 4 N. E. 752 ; Cusick v. Adams, 115 N. Y. 55 , 21 N. E. 673 ; Sterger v. Van Sicklen, 132 N. Y. 499 , 30 N. E. 987 . But if we construe the permission given Stover to remove the shelving, since it was offered as an inducement for him to hire the upper floor, as more than a license, and as constituting an invitation, to enter the basement, still the invitation was not the same as that extended by a storekeeper to the public. In the latter case the invitation implies an affirmative assurance that the premises are safe and secure for persons who may enter thereon; and it is the duty of the owner at all times to be vigilant to see that such safety and security are attained. But the basement, at the time Stover received permission to enter it, was vacant and unused. Stover, according to his statement, was twice in the basement, once with the defendant, when the latter pointed out the shelving which Stover could take. He saw as much of the flooring, and knew as much of its condition, as the defendant did. If the appearance was such that a prudent man should have been aware of the dangerous condition of the floor, Stover was as much bound to take notice of the danger as the defendant; and, if warning should have been given to any stranger entering the basement to be on his guard against the danger of accident, it was Stover upon whom the duty rested to give such warning when he sent his servant to remove the shelving. It can hardly be argued that it was the duty of the defendant to have repaired or have relaid Ms floor before he gave permission to any one tó remove articles from

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.