(dissenting). I dissent. The appellant Six Ninety and Two Realty Corporation, owner of the multiple dwelling referred to in the complaint, defaulted in the payment of interest and taxes under certain mortgages, payment of which had been guaranteed by the defendant New York Title and Mortgage Company. In March, 1932, appellant assigned to the guarantor the leases of the mortgaged premises and gave it full management and control thereof. The instrument provided, among other things, that the assignee was to maintain the premises and keep same in repair, and that the assignment was to be without prejudice to the right of the assignee to commence proceedings for the foreclosure of the mortgage. It was further provided that upon payment of all arrears together with the insurance premiums, taxes and all expenses “ this instrument shall cease, determine and come to an end.”
[ January 2, 1934, after the guarantor had taken possession under the assignment, plaintiff, a visitor to one of the tenants in the building, was injured as a result of negligence in the maintenance of the public stairway in the premises, and from the judgment entered in her favor against the defendant owner the latter appeals. The negligence complained of took place while the assignee was in possession of the premises.
*623For the reasons stated in Justice Callahan’s opinion — that the word “ owner ” in section 78 of the Multiple Dwelling Law means not the owner but the one in possession and control exercising the usual functions of an owner — my associates have concluded that the judgment must be reversed and the complaint dismissed.
On the facts presented by this record I do not agree with that construction of the statute.
By section 78 the “ owner ” is made responsible for failure to keep the multiple dwelling and every part thereof in good repair.
The guarantor went into possession neither as an owner nor as lessee; its possession and management, resulting from the owner’s default in performance of its obligations under the bonds and mortgages, was for the mutual benefit of both parties under the conditions prescribed in the assignment; and while the party in actual possession would, in this instance, be answerable under common-law principles for negligence in the operation of the premises, such liability is distinguishable from that imposed by the statute against the owner. It seeins to me that the owner cannot plead in defense that because the injury here resulted from the failure of the assignee to keep the premises in repair, the statute is a dead letter with respect to the owner.
We find a similar remedy given by section 59 of the Vehicle and Traffic Law, which makes the owner of an automobile hable for injuries sustained by reason of the negligence of any person operating the car with the owner’s permission. That statute does not provide that the statutory liability of the owner shall be in addition to the common-law liability of the operator of the car, yet it has never been questioned that either or both may be liable, the one solely by virtue of the statute, the other by common law.
In the practical operation of the statute the obligation imposed on the owner may not be so onerous as it seems at first sight, for the owner may in every case have a right to indemnity as against the active wrongdoer. (New York Consolidated B. R. Co. v. Mass. B. & Ins. Co., 193 App. Div. 438; affd., 233 N. Y. 547; Birchall v. Clemons Realty Co., Inc., 241 App. Div. 286.)
The judgment should be affirmed.