Royal Stein, Inc. v. B. C. U. Holding Corp.

Per Curiam. Plaintiffs appeal from an order dismissing their complaint and from the judgment entered thereon. It appears therefrom that the plaintiffs were bailors of material in the possession of tenants, as bailees, occupying space on the second and third floors of a building owned by the defendant. It is alleged that the material was in the possession of the respective tenants for processing. The complaint contains allegations that a toilet room was located on the third floor, which was used for the benefit of the tenants, and that the defendant operated, managed and controlled the plumbing and other fixtures therein. Hegligence is charged against the defendant in failing to keep this equipment in repair so that water flooded the premises and damaged the material. [701] The rule is well settled that where any permanent injury is done to a chattel, the bailor may maintain an action against a third person for an injury to the reversionary interest and where the bailor may, at his option, terminate the bailee’s possession, he may recover the entire amount of damages to the property. (8 C. J. S., Bailments, § 56; Restatement, Torts, § 220; Baird v. Daly, 57 N. Y. 236; Berger v. 34th St. Garage, 274 App. Div. 414; Goebel v. Clark, 242 App. Div. 408; cf. Green v. Clarke, 12 N. Y. 343.) The causes of action set forth in the complaint are not based upon a contractual relation as claimed by respondent. The gravamen of both causes is that the respondent maintained a portion of the premises for the joint use of tenants and failed to maintain the premises in a proper condition resulting in damage to plaintiffs’ personal property. The defendant’s liability, if any, to the plaintiffs arises from negligence and is not based on the breach of any contractual duty. (Cf. Baird v. Daly, supra.) The order and judgment appealed from should be reversed, with costs to the appellants, and the motion denied. Peek, P. J., Callahan, Bastow, Botein and Bergan, JJ., concur. Judgment and order unanimously reversed, with costs to the appellants, and the motion denied.