Frank v. Mandel

Goodrich, P. J. (dissenting):

The complaint alleges that the defendants were owners and landlords of a tenement house in Manhattan and had leased apartments therein to one Goodman and had agreed to keep such apartments in proper repair, reserving the right to enter the apartments to make such repairs; that the defendants resided at the premises and had knowledge of the condition of the apartments; that the plaintiff “ resided ” at the premises with Goodman; “ That as a'result of the negligence of the defendants in not keeping the ceiling of the above-described apartments in proper repair, plaintiff was struck by such ceiling falling on her head while lying in bed,” and thereby siisr tained injuries for which she. claimed damages.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action,: The court overruled the demurrer for the reason that the action was not by a tenant suing for negligence by which personal injuries were "sustained, but by an inmate who .charged that' her injuries were occasioned by the personal neglect of the landlord. .

In Sterger. v. Van Sicklen (132 N. Y. 499) the court quoted with approval the language of Devens, J., speaking for the court in Severy v. Nickerson (120 Mass. 306), as follows: “ The distinction which exists between the., obligation which is due by the owner of premises to a mere licensee who enters thereon, without any enticement or inducement, and to one who enters upon lawful business by the invitation, either express or implied, of ¡the proprietor, is well settled. The former enters at his own risk;; the latter has a right to believe that, taking reasonable care himself, all reasonable cate has been used by the owner to protect him in order that no injury may occur.”

The complaint alleges, though perhaps not with scientific aceu*421racy, that the plaintiff’s injury resulted from the negligence of the defendants. Taking this allegation as true, the demurrer was properly overruled.

In Hilsenbeck v. Guhring (131 N. Y. 674) it was held that the defendant was under no greater obligation to the plaintiff in that action than if he occupied the position of tenant himself, and that as the plaintiff was a guest of the tenant he was entitled to the same amount of care and no more than if he was a tenant, and consequently that the defendant was not liable for an injury to the guest as the evidence failed to show amy negligence. But the present complaint alleges negligence resulting in the plaintiff’s injury, aside from any duty which the defendants owed their tenant, and the action is not based upon a contract between a landlord and his tenant, but upon the negligence of the defendants resulting in injury to the plaintiff.

In Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245) it was said that “ if any responsibility in this case attaches to the defendant, it cannot be based upon any contract obligation, but must rest entirely upon its delictum. 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. * * * The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum which leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him.”

Here the allegation is that the defendants were guilty of negligence and that this was the cause of the plaintiff’s injuries. It may be that the plaintiff may not succeed in proving negligence resulting in her injury, but we assume on demurrer that the allegation is true.

I think that the interlocutory judgment should be affirmed.

Interlocutory judgment reversed, with costs, and demurrer to complaint sustained.