Kennedy v. Fay — 65 N.Y.S. 202

Majority

p. 202

KENNEDY v. FAY.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

1. Injury to Tenant—Liability of Landlord.

In the absence of proof that a landlord agreed to repair demised premises, he was under no obligation to repair them, or keep them in a habitable condition.

2. Same.

In the absence of proof that a landlord had any knowledge of the condition of the ceilings of demised premises, no recovery could be had by a tenant for injuries caused by a fall of plaster therefrom.

Appeal from municipal court, borough of Manhattan.

Action by Mary Kennedy against James Fay. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.

Oomelius J. Earley, for appellant.

Weeks, Battle & Marshall (Frank C. Mebane and H. Snowden Marshall, of counsel), for respondent.

The action is to recover damages for personal injuries claimed to have been received by the plaintiff from the fall of plaster in premises where she resided with her husband, who was in possession under a lease from the defendant. When the plaintiff rested, the defendant moved for a dismissal of the complaint, which motion was granted, and the plaintiff, by her appeal, challenges the correctness of the ruling. The record fails to disclose any proof whatever that the defendant agreed to repair the demised premises. Hence he was under no legal obligation to repair the same, or keep them in a habitable condition. Schick v. Fleischhauer, 26 App. Div. 210 , 49 N. Y. Supp. 962 . Even if he had made such an agreement, and failed to make the repairs, the defendant would not be liable for the injuries which the plaintiff says she sustained in consequence of the fall of the ceiling. Wynne v. Haight, 27 App. Div. 7 , 9, 50 N. Y. Supp. 187 . Moreover, as the plaintiff wholly failed to show that the defendant knew, or had reason to know, that the ceiling was dangerous or unsafe at the time of the letting of the demised premises to her husband, and failed to disclose that fact, or that the defendant at any time had any knowledge, either actual or constructive, as to the condition of the ceiling, the ruling of the justice should

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be upheld. Franz v. Mulligan, 18 Misc, Rep. 411 , 42 N. Y. Supp. 509 .

It follows from these views that the judgment must be affirmed, with costs.

Cases cited

Wynne v. Haight 27 App. Div. 7 N.Y. App. Div. 1898-03-11 at 9, 50 p. 202