Franz v. Mulligan

Beekman, J. Briefly stated; the complaint alleges that- the-de^ fendant was the owner and landlord of Ho. 246 Henry street,- in this .city, and that prior.to April, 1896; the plaintiff with her husband ahd their two children, occupied a. portion of the. premises as. tenants, and that on a day; hot mentioned, in the month of April, 1896,. the plaster on the ceiling of such apartments fell upon her and inflicted certain injuries .which she describes. She further alleges that such injuries were sustained without any negligence on her part, but “ Through the carelessness and negligence of the defendant, her agents and sérvants,- in allowing said ceiling to; become and remain in an unsafe and dangerous condition; and dangerous -to the life and limb of the persons occupying said premises, and also through defendant’s failure to keep the sanie in proper repair and in a safe ahd tenautable condition.” The defehdant demurs to the complaint oh the ground that it doés not' state facts sufficient to constitute a cause of action': The. demurrer sééms to 'be well Taken under the authority of Denner v. Ogilvie, 49 Hun, 229, which was decided, by the General Term in this'departe ment. In that case there was' - a platform'in front of the rodins hccu- ‘ pied by the plaintiff as tenant of the defendant, which was used and intended to be used in connection with the demised' .prémises. The complaint charged that “ The defendants negligently failed. to properly guard or protect the platform, and permitted it to become and remain in an. improper, unsafe and dangerous condition, so that the plaintiff, on April 22, 1887, while in' the proper and lawful .use -of the rooms and platform, without contributory' negligence, fell from the platform into the yard below, solely because of' the negligence of the defendants, and the improper,' unsafe and negligent manner in which the said platform was constructed, guarded and kept, and its unsafe, improper and dangerous condition.” ' I quote from the statement • of the complaint contained in the opinion of Judge Bartlett. The complaint was demurred to, and the demurrer was overruled at Special Term. On appeal to the General Term the judgment below was reversed, the court holding that, it was essential to:.*a- statement of a cause of. action in such a case that the complaint should allege that the ■ defendants knew or had reason to know the' platform to be dangerous fOr any use for which they let it, and failed to disclose its condition, or- that, they had agreed to. repair , it or make it- safe, and omitted to-do so. At page 232 of the opinion the learned [413] judge says: “ There appears to be nothing then to take the case at bar out of the ordinary rule that no warranty is implied on the part, of the lessor of a dwelling that it is safe and convenient. Jaffe v. Harteau, 56 N. Y. 398. The law which should control the disposition of this demurrer is stated with such perfect clearness in Edwards v. New York & Harlem Railroad Co., 98 N. Y. 245, 249, that we need only quote a few sentences from that case: ‘ If a landlord lets premises and agrees to keep them in repair, and he fails to do so, in consequence of which any one lawfully upon the premises suffers injury, he is responsible for his own negligence to the party injured. H he, demises premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence which will in many cases impose responsibility upon him. If he creates a nuisance upon his premises, and then, demises them, he remains liable for the consequences of the nuisance as the creator thereof, and his tenant is also liable for the continuance of the same nuisance. But where the landlord has created no nuisance, and is guilty, of. no willful wrong or fraud or culpable negligence, no case can be found imposing any.liability upon him for any injury suffered by any person occupying or going upon the premises during the term of the demise.’ ” , In the case, at; bar it was not enough for the plaintiff to make a general allegation of negligence on the part of the landlord as the cause of the injuries of which she complains. She should have gone further and charged that the defendant knew or had reason to know that the ceiling was unsafe or dangerous, and failed to disclose that fact, or that she had agreed to repair it or make it safe, and omitted to do so. In the absence of some such allegation bringing the case within the principle referred to in Donner v. Ogilvie, supra, I am constrained to hold that the complaint does not state facts sufficient to constitute a cause of action. The demurrer is, therefore, sustained, with costs, with the usual leave to the plaintiff to amend on payment of costs.' Demurrer sustained, with costs, with leave to amend.