Washington v. Episcopal Church of St. Peters

The plaintiff fell through an elevator opening from the basement to the subbasement of the building owned by the der fendant, and brings this action to recover damages for personal injuries, alleging as the basis of negligence or breach of duty on the part of the defendant its failure to provide the gate, guards, or trapdoors required by section 91 of the building code of the city of New York. The elevator was used for the hoisting of materials from the basement or subbasement to the ground floor. Three years before the accident the defendant had leased the portion of the premises including the first floor, basement, and subbasement to a tenant, who, with its subtenants, occupied the premises at the time of the accident. The record discloses and the court charged the jury, that there was no proof that at the time the premises were demised there was a nuisance on them. The court nevertheless charged the jury that, if the defendant was receiving the rent of premises which were in an unlawful condition, it was liable for any injury resulting therefrom. It is unnecessary to consider the question discussed in the briefs, whether proof of the violation of a city ordinance furnishes proof or evidence merely of negligence, although this question seems to be settled adversely to the contention of the respondent (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488 ), because this judgment must be reversed for the want of any evidence tending to prove any fault or breach of duty on the part of the defendant. The defendant did not maintain this elevator, and, in the absence of evidence tending to show a faulty condition upon the demise of the premises, it owed the plaintiff no duty.

The judgment and order should be reversed, and a new trial ordered; costs to abide the event. All concur.