Hyman v. Barrett

Clarke, J.: The plaintiff alleges that she was a tenant of defendant at 804 East Fifth street on the 7th day of June, 1910; that defendant was the lessee and in control of said premises, a portion of which were used as halls. There were two houses arranged as tenement houses and in the rear building the plaintiff was a tenant. The plaintiff was crossing the yard between the two buildings on the 7th day of June, 1910, when a board or plank fell upon her and caused the injuries complained of. She claims that the board or plank was dropped from out of a window of the upper story of said rear building by the defendant or his agents, who were engaged in making repairs to said building at the time. There are two questions in this case. (1) Whether the relation of landlord and tenant existed between the plaintiff and defendant. The court charged, as a matter of law, that such relation at the time of the accident [207] did exist. In this he was entirely justified. The owner of the property was Mrs. Conklin. On the 20th day of February, 1909, she leased the premises to the defendant at a yearly rental, payable monthly, from the 1st of April, 1909,- but a separate instrument was attached thereto providing: “ It is hereby mutually agreed by Cornelia L. Conklin, party of the first part and Hopkins Gr. Barrett, party of the second part, that the lease dated February 20th, 1909, for the property situate 314-316-318 East 28th St. and 835 East 12th St. and 804 East 5th St. be continued until the property at 804 East 5th St. be put in such repair as required by the Tenement House Department of New York City.” She also made an agreement on the 16th of April, 1910, with the defendant under which he agreed to do all work, alterations and repairing on the two houses situate at 804 East Fifth street for $3,000, and was to pay the said Cornelia L. Conklin $155 per month for the said property from the time the 804 East Fifth street house was completed until February 20, 1911, after which tjme he was to pay $2,000 for one year after February 20, 1911. And receipts for rent were proved for $130 down to July, 1910, and thereafter for $155. This accident occurred on the 7th of June, 1910. In addition to that the defendant, as landlord, began a dispossess proceeding against the plaintiff in June, after the accident, for non-payment of part of the rent for May and part of June, resulting in a judgment adjudging possession of the premises in his favor as landlord, and a warrant of dispossession directed to the marshal was signed on the twenty-eighth day of June, as a result of which she was dispossessed, so that the court was Justified in charging that the relation of landlord and tenant existed at the time of the alleged accident. The contentions are summed up in the charge as follows: “ What is the alleged act of negligence which I am about to submit to you ? It is contended by the plaintiff that the defendant negligently conducted building operations by which a board was precipitated from an upper window in the rear building while she was passing from the front building to the rear building to enter her apartment. The defendant in the first place, absolutely denies that any such accident occurred in the manner claimed by the plaintiff — that I will take up later — and he also contends that [208] if it did, and under our Code he is entitled to make a defense within his rights — that the contract for the alterations had been entrusted to a competent contractor, an independent contractor, and therefore that he was free from negligence in that he exercised ordinary care in selecting an independent contractor who was a free agent to conduct these repairs. As to that, gentlemen, I charge you as a matter of law, that the defendant was under obligations to protect his tenants from any unnecessary disturbance and for that purpose to see to it that the building operations on the building, when repairs were being made thereon, were conducted with all reasonable care and prudence; that that duty df a landlord to protect his tenants from disturbance in the course of his building operations or repairing operations, is of a personal character and he cannot discharge it by delegating those operations to a competent independent contractor, and that this obligation extended to the place offered as a means of ingress and egress of the tenants to and from their apartments.” In so charging the learned court was following Paltey v. Egan (200 N. Y. 83), where the Court of Appeals said: “ Ordinarily the respondent might reply, as he does attempt to, that he discharged his obligations by securing a competent independent contractor and that thereby he has been relieved from responsibility for any negligence except of himself, which is not shown to have existed. That defense, however, is not available in this case. The respondent’s duty to protect his tenants from disturbance in the course of his building operations was of a personal character and he could not discharge it by delegating those operations even to a competent independent contractor. (Blumenthal v. Prescott, 70 App. Div. 560, 565; Sciolaro v. Asch, 198 N. Y. 77.)” In the case at bar the defendant was the general contractor as well as plaintiff’s landlord, and his contract provided: “ The contractor [is] to give his personal superintendence to the work, furnish all materials, transportation; labor, scaffolding, * * *. He shall be liable for all accidents or damage to property traceable to the negligence of himself or his subordinates.” The accident was testified to by plaintiff and another tenant and the testimony on defend [209] ant’s part was slight and unsubstantial. There is no doubt there was a question of fact for the jury nor is there any doubt as to the woman’s injuries. Both plaintiff’s and defendant’s doctors testified that she was suffering from neurasthenia and that the blow on the head from this board was a competent producing cause of the situation that she is in. Sitting in the back of the court during the trial, plaintiff fainted and was taken outside, and appellant urges error in the denial of his motion to withdraw a juror, the intimation being that this fainting was a pretense to improperly affect the jury. But his physician testified that he saw she had a fainting fit; that he went outside and examined her when she had it; that such a fit was one of the manifestations- of hysteria and comes in some cases more frequently than others; that her fainting spell was what is called hysterical epilepsy. It resembles epilepsy but is not true epilepsy. It is really hystero-epilepsy; that he did not believe she feigned it; that if he were told that this occurred every two or three days he would not at all be surprised in view of the condition he found her in in March; these fainting fits or this condition of hystero-epilepsy may occur very frequently, and that kind of a condition was to be expected. The denial of a motion for mistrial was right— I think this case was properly submitted to the jury; that there are no reversible errors and that the judgment and order should be affirmed, with costs to the respondent. McLaughlin and Scott, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.