Kushes v. Ginsberg

Ingraham, J.: The action is for damages for the injuries caused to the plaintiff’s wife by the falling" of the ceiling in an apartment that the defendant had leased to the plaintiff. The complaint alleges the ownership of the property by the defendant; that in the month of January, 1899, the defendant leased to the plaintiff by parol certain premises in the [419] building, representing to the plaintiff that the same were in good condition and repair, and then agreed that he would keep the property thus leased in good and proper repair; that, relying upon said representations and agreement, the plaintiff entered upon and took possession of the premises; that the defendant, in violation of the said agreement with the plaintiff, “negligently, knowingly and unlawfully permitted the said apartments, after said time and during all the time prior to the occurrence hereinafter referred to, to become and remain out of repair and in an unsafe and uninhabitable condition, and especially permitted the ceiling in the kitchen of said apartments to become and remain in an unsafe condition; ” - that after the plaintiff had gone into possession of the premises he frequently called the defendant’s attention to the condition of the ceiling of the kitchen, but that the defendant on said occasions represented to the plaintiff that the said ceiling was perfectly safe and could not fall; that the said representation was in all respects false, and was made for the express purpose of inducing the plaintiff to remain on said premises, and the plaintiff, relying upon such representations and believing the truth thereof, remained therein; that on the 9th day of February, 1900, over a year after the lease of the property, the plaintiff’s wife was injured by a fall of the ceiling of the kitchen; and the plaintiff seeks to recover for the injuries he sustained in consequence thereof. There is no allegation in the complaint that at the time the apartment was leased the premises were not in repair, the allegation being that after the plaintiff entered into possession the defendant in violation of his agreement permitted the premises to become and remain unsafe. It is quite clear under the settled rules that this action cannot be maintained as an action for negligence. The demise of an apartment includes the ceilings of the rooms, and in such a case the liability of the defendant would be governed by the ordinary rules which obtain between landlord and tenant. (Golob v. Pasinsky, 178 N. Y. 458.) It is not alleged that the control of the ceiling was reserved by the defendant, and a breach of an agreement to repair would not entail a liability for persona! injuries occasioned by a failure of the defendant to perform hi's agreement. (Schick v. Fleischauer, 26 App. Div. 210.) The plaintiff seeks, however, to sustain this com [420] plaint upon the ground that a cause of action for fraud is alleged. There is no allegation that the premises were not safe when the premises were leased, but the alleged fraud consisted of the fact that the defendant represented that this ceiling was safe when during the tenancy the plaintiff called his attention to it. There is no allegation that these representations were known by the defendant to be false when he made them. At some subsequent time he stated to the plaintiff that the ceiling would not fall, but just when that representation was made is not alleged. There is no allegation to show that the defendant did not believe that the statement was true or that he intended to deceive; and thus scienter, a necessary allegation to sustain an action based on fraud, is not alleged. The plaintiff also claims that the defendant was guilty of maintaining a nuisance and is thus liable for the injuries caused thereby, but this alleged nuisance was an unsafe ceiling in an apartment house owned by the defendant which had been leased to the plaintiff and which was in his exclusive occupation. There was no element of a nuisance which would justify a recovery. It follows that the judgment appealed from must be affirmed, with costs, with leave to plaintiff to amend the complaint upon payment of costs in this court and in the court below. Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and Hatch, J., dissented.