Schachne v. Barnett — 31 N.Y. St. Rep. 401

Majority

p. 401

Fannie Schachne, Resp’t, v. Samuel Barnett, App’lt.

(New York Superior Court, General Term,

Filed May 5, 1890.)

Headnote

Negligence—Liability op owner op premises por injury to passers by.

Plaintiff was injured by the falling of a large stone or marble slab from the upper fire escape of premises owned by defendant. The building was a tenement-house, but the apartment in front of which the stone lay had been vacant for eight days, and defendant had notice of the position of the stone, which projected over the opening in the fire escape. The housekeeper of the building had seen the stone in the same position for over a year. Held, that, under the circumstances, the court properly denied the motions to dismiss the complaint, or to direct a verdict for defendant.

p. 402

. Appeal from, judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.

. Christopher Fine, for app’lt; Adolph Cohen, for resp’t.

The plaintiff was lawfully walking along Ridge street, a public street in the city of New York, and passing the tenementAouse known as No. 91 Ridge street, and owned by the defendant, when a large stone or marble slab, which had been placed, and had remained for some time, upon the uppermost fire escape, on the front of the building, fell down and struck her upon the head and severely injured her. The action was brought to recover damages for the injuries thus sustained.

The complaint alleged, and the answer by not denying admitted, that at the time in question and for some time prior thereto the defendant was the owner and had possession and control of the said premises known as No. 91 Ridge street, with the fire escapes attached thereto and all the appurtenances thereunto belonging.

Notwithstanding this admission upon the record the defendant, now contends that the complaint should have been dismissed at the trial, because it was shown that he was not an actual occupant of said building or any part thereof, and because, not having been said occupant, he cannot be held liable for any misuse of the premises by any of his tenants.

This contention is not well founded in view of the state of the evidence, even if the defendant could be permitted to deny the admission that he was in control.

True there was no evidence that the fire escapes were out of repair, or that the stone which fell was part of the building or fire escape, or that the defendant put it upon the fire escape from which it fell, or that he authorized anybody to put it there. So-it is also conceded that the premises consisted of a six story building, with properly constructed fire escapes in front thereof from the sixth to the second floor, and that sometwenty-six families lived upon the premises. There was an opening in the bottom of each fire escape except the lowrest and through said openings a ladder ran in front of the building from, the sixth to the second floor. The top or uppermost fire escape was the one on which the stone lay. That fire escape was in front of the two middle windows of the top floor, the right,window belonging to apartments which had been occupied by a tenant named Seiler, and the left window belonging to apartments: then occupied 'by- a tenant named Natowitch. The stone lay between the- said two windows and projected somewhat over the opening in the fire escape. There-was some testimony'that''some boys Were playing Or quarreling on that fire escape, but the immediate, cáuseT of the fall of the stone was left uncertain. _ . "

' But the plaintiff showed that when Seiler moved into his apartment, lie found the" stone in the position already described; that while-he-resided there, he let the stone remain there; that when he moved, he left it there; that Seiler vacated his apartments about eight days before the accident, and that the defendant rented

p. 403

them to another tenant after the accident; that in the meantime the premises were kept locked, and that the defendant had full control over them, and even had, through a conversation with another person on the premises, actual notice of the presence of the stone on the fire escape, but neglected to remove it after such notice. And the plaintiff also gave proof that the defendant had a housekeeper on the premises, whose duty it was to keep the house in order and to take charge of the house generally, and that the said housekeeper had seen the stone from a year to a year and a half in the same position. There was no evidence that the tenant ¡Natowitch had anything to do with placing the stone on the fire escape, or maintaining it there.

In view of these facts the trial judge properly refused to dismiss the complaint or to direct a verdict for the defendant, for upon them and the other evidence in the case it was competent for the jury to find that the presence of the large stone or marble slab projecting over the opening in the fire escape in the manner it did, constituted, under all the circumstances, a standing menace to the safety of passers-by, of which the defendant had sufficient notice, and which he was bound to remove irrespective of any duty specifically cast upon him by § 26 of chapter 566 of the Laws of 1887, relating to the erection of fire escapes, but which he failed to remove notwithstanding the notice and sufficient opportunity for the purpose. True, many of these facts were contradicted by the defendant, but that only created a conflict, and it was then for the jury to determine the conflict

The issues were submitted to the jury under a charge which fully and fairly guarded all the rights of the defendant, and were determined by them in favor of the plaintiff. The record discloses no exception which is tenable, and no sufficient reason appears why the verdict of the jury should be disturbed.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., concurs.