Walton v. Kane — 53 N.Y. St. Rep. 429

Majority

p. 429

Kate Walton, Resp’t, v. Ann Kane, App’lt.

(City Court of Brooklyn, General Term,

Filed June 26, 1893.)

Headnote

1. Landlord and tenant—Negligence.

Plaintiff was a tenant in a tenement house owned by defendant, the water closet in which had become stopped up so that the contents flowed out and upon the stairway, an'd testified that as she was descending the stair she slipped on some of this matter and was thrown down several steps and injured. Defendant’s son, who had charge of the premises, testified that he went up and down this stairway daily. Seld, that the questions of negligence were for the jury to determine.

U. Same—Evidence—Offer of compromise.

Evidence of a promise to compensate plaintiff, admitted without objection, does not constitute an offer of compromise merely, and is properly left for the consideration of the jury under a charge that they are to disregard any offer of compromise.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

Charles J. Patterson, for resp’t; George F. Elliott, for app’lt.

The defendant was the owner of a tenement house on the top floor of which -the plaintiff and her husband lived as tenants. The stairway leading down from the second floor had at the top thereof a water-closet. For some weeks prior to the accident -this closet was out of repair and stopped up, so that its filthy contents and water would flow out of the basin upon the floor of the closet and thence down these stairs, which were rendered slippery with fecal matter mixed with dirty water. The plaintiff testified that she went down this stairway three steps and reached a platform about four feet square, and while in the act of feeling her way to the edge of it, and about to take hold of the baluster, her foot slipped on some of this filthy matter and she was precipitated down fifteen steps, receiving the injuries complained of. Defendant’s son, who was in charge of and managed this house, testified that he went up and down this stairway -daily. Plaintiff had a verdict for $500. Under such circumstances, the negligence of defendant and the freedom of plaintiff from contributory negligence were questions for the jury. Peil v. Reinhart,, 127 N. Y., 381 ; 38 St. Rep., 913 ; Palmer v. Dearing, 93 N. Y., 7 . We think the evidence fully sustains the verdict on both questions.

The only other exception called to our attention by the appellant’s counsel, either in his printed brief or oral argument, is that taken to the court’s instruction to the jury, at folios 200 to 204. He contends that the evidence of the- promise to compensate the plaintiff should have been taken entirely from the jury, on the ground that it was merely an offer to compromise, and cites Smith v. Satterlee, 130 N. Y., 677 ; 41 St. Rep., 711 . There are several answers which seem to us to be fatal to this contention. First, it was not an offer to compromise merely, but a voluntary and absolute promise to compensate her. Brice v. Bauer, 108 N. Y., 428 , see 433; 13 St. Rep ,765. Second, the court instructed the jury to disregard any offer of compromise. Third, Sinithr.

p. 430

Satterlee, and like cases simply hold that an offer of compromise is privileged, and evidence thereof will be excluded if the privilege is claimed by objection to its admission. This testimony was admitted without objection on the part of the plaintiff, and, before it was introduced defendant’s counsel had brought out similar evidence on his cross-examination of plaintiff. The defendant, by failing to object in the one instance, and by bringing out the testimony in the other instance, has waived her privilege.

For these reasons, we think the judgment and order must be-affirmed, with costs.

Osborne, J., concurs.