Blake v. Fox — 43 N.Y. St. Rep. 527

Majority

p. 527

Andrew P. Blake, Resp’t, v. Simon Fox, App’lt.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

1. Landlord and tenant—Negligence—Defective elevator.

Where a landlord furnishes an elevator for the use of his tenants it is his duty to keep the same in repair, and he cannot escape that duty by delegating its performance to others, and hence it is immaterial that the person who makes an alteration therein was the servant of the landlord or an independent contractor, or whether the landlord had notice of the defective performance.

3. Same.

The landlord is not excused from liability by the fact that such alteration was gratuitous and for the accommodation of the tenants.

To enable an elevator which carried 350 pounds to reach the upper story the rope was spliced, and a few days thereafter it parted at the splice, causing injury to plaintiff. Held, that there was sufficient evidence of negligence to carry the case to the jury.

Appeal from judgment of general term, city court, affirming judgment on verdict; and from an order affirming order denying new trial. Action by infant of eight years, for damages from alleged negligence of defendant Plaintiff resided with his mother in a tenement house of defendant, where she hired apartments. A dumb-waiter operated between the cellar and the upper stories of the building for the general use of tenants in carrying coal and -other things to their r'ooms. This dumb-waiter was in the custody and control of defendant, landlord. At the instance of tenants, defendant undertook to arrange for the dumb-waiter to run to the 4op of the house; and this alteration required a lengthening of the sape by which the dumb-waiter was operated. Instead of procur

p. 528

ing a new and longer rope, the old rope was “spliced.” Within, three days after the change the rope parted at the splice, was precipitated to the floor of the cellar, and by its fall inflicted the-injury complained of on the plaintiff.

Samuel W. Weiss, for app’lt; T. B. Wakeman, for resp’t.

In legal effect the relation between the plaintiff and defendant was that of landlord and tenant, and their respective rights and liabilities in the action are to be determined by that relation. •

The dumb-waiter being provided by the landlord for the common use of tenants, it was his duty “ to use reasonable care to keep it in repair and suitable condition.” Peil v. Reinhart, 127 N. Y., 381 , 384, 385; 38 St. Rep., 913 ; Ritterman v. Ropes, 51 Supr. Ct., 25; Tousey v. Roberts, 53 id., 446; 1 St. Rep., 780 ;. Dawson v. Sloane, 49 Supr. Ct., 304, aff’d, 100 N. Y., 620 . And. that duty he cannot escape by delegating its performance to, another, but is still responsible for its negligent performance by whomsoever he substitutes as his representative. Fuller v. Jewett, 80 N. Y., 46 , 52; O’Sullivan v. Norwood, 14 Daly, 286 ; 8 St. Rep., 388 . Nor was the rigor of the obligation incumbent on defendant at all relaxed by the fact that he undertook the alteration of the dumb-waiter for the accommodation of his tenants, the-rule being that, although the service was gratuitous, he was nevertheless liable for misfeasance in its performance. Coggs v. Bernard,. 1 Smith’s Leading Cases, 346-435.

Such being the principle of the liability incumbent on defendant, these two corollaries are inevitable, namely: First, it is immaterial whether the man who made the alteration was a servant of the defendant or an independent contractor; and, secondly, it is-immaterial also whether he had notice of the defective performance of the work. In contemplation of law the work was his work, and so his liability for its negligent performance is absolute. Otherwise, however, had the work been properly done and its defect a subsequent condition, for then notice of the defect, or its-equivalent, might have been a prerequisite of liability.

Obviously, therefore, most of the exceptions apparent in the-case are untenable.

The only question, then, for determination is whether the evidence of negligence in the performance of the work was sufficient to take the case to the jury, for, if so, we are concluded by the action of the court below.

The dumb-waiter being designed for a weight of 350 pounds,, plainly a rope of considerable consistency and strength was necessary to its secure operation. And yet, instead of supplying a new rope, the defendant was content to “ splice ” the old one. That, the splicing was the cause of the break is not controverted, and that the splicing was insufficiently and negligently done is supported by evidence abundantly adequate to sustain the verdict.

The point that the negligence of the mother contributed to the-child’s injury, though raised on the trial, is not presented by the,argument on appeal. However, the issue was submitted to the

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jury, by a correct charge, and their decision is sufficiently supported by the evidence.

The apparent error in the charge as to the rule of damages was repaired by the subsequent explanation of the learned justice.

We have no" jurisdiction to reverse the judgment for the amount, of damages, even if we deemed it excessive, which, however, is not apparent.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.