Kuperschmid v. Tauszig

Per Curiam: We are of the opinion (1) that the defendant did not surrender control of any part of the roof of the building; (2) that no matter which of the several possible findings of fact be adopted as to how the leak occurred, the defendant was shown to have been at fault in failing properly to guard against the leak that occurred, after ample notice; (3) that the plaintiff is not to be charged with any act of omission constituting contributory negligence. The action was properly brought for negligence, there having been no agreement by the defendant, landlord, to repair. (Loucks v. Dolan, 211 N. Y. 237.) We do not feel called upon to express any general opinion as to when a lessee of premises is required, in order to avoid giving grounds for the charge of contributory negligence, to give up the use of any part of the demised premises for which he is paying rent, or to take affirmative steps to protect his property against defects attributable to the landlord. Confining ourselves strictly to the facts of this case, we are of the opinion that the plaintiff did not fail in his duty in any respect. Judgment affirmed, with twenty-five dollars costs. Bijur and Mullan, JJ., concur; Guy, J., dissents with opinion.