Judgment and order of the City Court of White Plains affirmed, with costs. The ease of Cullings v. Goetz (256 N. Y. 287) was not that of a leasing with an existing danger in the demised premises.
As pointed out in the Appellate Division opinion in that case (231 App. Div. 266, 268), the defective condition of the premises arose “ after the beginning of the tenancy.” In such circumstances, it was held that the landlord’s covenant to repair did not inure to an action in tort at the suit of the lessee or of others lawfully upon the premises “ in the right of the lessee ” for the lessor’s failure to keep the premises in repair in accordance with his agreement.
In Campbell v. Holding Co., Inc. (251 N. Y. 446), it was pointed out that there was no evidence to show that the premises were to be used in serving the public and that the record permitted the inference that the building in question may have been leased for private use only and so exclusively used.
Lazansky, P. J., Kapper, Hagarty and Carswell, JJ., concur; Young, J., dissents, with the following memorandum: In my opinion, there is no liability on the part of the landlord in this case, under the rule laid down in Campbell v. Holding Co., Inc. (251 N. Y. 446).
It is stated in the opinion by Judge Kellogg in that ease that the rule is that a lessor is not liable for injuries to the lessee or others upon the premises in the right of the lessee resulting from a structural defect existing when the lessee took possession. This is the general rule, but does not apply if the lessor rents the premises for a public use to which he knows they are unsuited.
The premises involved here were not rented for a public use, as that term is used in the cases 793 Reading Judge Kellogg’s opinion, page 448, it appears that everyone of the eases cited as illustrating the exception to the rule involved a public use. It is plain to me that the premises we are considering were not leased for any such purpose, and I think the judgment should be reversed and the complaint dismissed.
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