The defendant 65 Central Park West Corporation appeals from an order which struck out an affirmative defense setting up the three-year Statute of Limitations applicable to negligence actions. Special Term held that the action was one ‘ ‘ to recover upon a liability created by statute, except a penalty or forfeiture ” (see Civ. Prac. Act, § 48); and that, therefore, it was governed by the six-year statute rather than the three-year statute.
*84The amended complaint, to which the defense was imposed, contains two alleged causes of action to recover for alleged personal injuries claimed to have been sustained by plaintiff, a tenant, as the result of an electric shock received from an electric refrigerator in a multiple dwelling owned, controlled arid managed by the appellant. The appellant is concerned solely with the first cause of action; and the plaintiff contends and Special Term agreed that such cause was to recover upon a_ liability created by the Multiple Dwelling Law and that it was governed by the six-year statute.
The amended complaint, in the cause directed against the appellant and others, contains allegations that the appellant’s premises “ consisted of a multiple dwelling, under the New York Multiple Dwelling Law, wherein there were three or more apartments in which each of the tenants independently did their own cooking and that the appellant and a certain irianagemcnt company (codefendant Rudin Management Co.) “represented expressly or impliedly, that they would keep the aforesaid refrigerators in good repair and in good working condition and fit for their intended use within the said apartment.” But then follow allegations giving indication that the complaint is framed and that the action will be maintained on theory of a negligent breach of duty by defendant, to wit, it is alleged that ‘ ‘ while the plaintiff was lawfully in her apartment, being a tenant therein, and while in the exercise of all due care for her own safety, and due to the carelessness and negligence on the part of the defendant 65 Central Park West Corporation and/or the defendant Rudin Management Co., Inc., their officers, agents, servants, and employees, in permitting the said refrigerator to be and become in a dangerous and defective condition as the result of which the plaintiff sustained a severe electrical shock ’ ’.
Notwithstanding the allegations tending to indicate that plaintiff will in whole or in part rely upon the negligence of the appellant to support a recovery against it, it is the plaintiff’s contention as stated in her brief that the action is brought by her ‘ ‘ for violation by the landlord of the provisions of the statute, the Multiple Dwelling Law ’’. So assuming (and leaving for later discussion the effect of the general allegations of negligence in the complaint), it is concluded that this statute is not truly one which creates a liability within the meaning of subdivision 2 of section 48 of the Civil Practice Act. ‘ ‘ A statute ‘ creates ’ no liability unless it discloses an intention express or implied that from disregard of a statutory command a liability for resultant damages shall arise ‘ which would not exist but for the statute. ’ (Shepard v. Taylor Pub. Co., 234 N. Y. 465, 468.) ” *85(Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287, 305.) The question here is whether or not this statute (Multiple Dwelling Law, § 78) creates a liability per se irrespective of negligence. (See Amberg v. Kinley, 214 N. Y. 531, 535.)
The statute here does not expressly say that the owner of multiple dwelling premises shall be liable for personal injuries occasioned by his failure to keep the premises in repair. It is argued, however, from the plaintiff’s standpoint that the statute, providing for a duty on the part of the owner, not existing at common law, to keep in repair the noncommon portions of a multiple dwelling, impliedly creates a liability on the part of the owner for breach of such duty. This does not follow because the duty is- not an absolute one. (See decisions cited, infra.) Clearly, the effect of the statute was merely to extend the common-law duty of the landlord with respect to repairs so as to obligate him to keep in repair noncommon portions of the building; and, a breach of such duty, as in the case of a breach of a common-law duty, would merely constitute negligence.
It has never been authoritatively held that the statute creates a per se liability independent of negligence. Quite the contrary, the controlling decisions generally speak of the statute as creating a duty which is not absolute and the breach of which is negligence. ‘ ‘ The law imposes on the owner of a multiple dwelling such as this the duty to keep it in good repair (Multiple Dwelling Law, § 78). The duty is not absolute but arises after notice, actual or constructive, of the dangerous condition (Altz v. Leiberson, 233 N. Y. 16, 18; Fish v. Estate of McCarthy, 224 App. Div. 160 * * *). If the owner failed in such duty and such failure caused or contributed to plaintiff’s injuries, the owner is guilty of active negligence.” (Shass v. Abgold Realty Corp., 198 Misc. 1052, 1054.) To same effect, see Century Ind. Co. v. Arnold, 153 F. 2d 531, 533, where the Federal Court of Appeals, Second Circuit, specifically held that it was “ not the New York law ” that the owner of an apartment house was, by virtue of section 78 of the Multiple Dwelling Law, “ under an absolute duty to keep the premises in good repair ”; that “ .[a]ctual or constructive notice of the dangerous condition is an essential element of liability ”, citing Altz v. Leiberson (supra); Becker v. Manufacturers Trust Co. (262 App. Div. 525, 527, reargument denied 263 App. Div. 810); Collins v. Noss (258 App. Div. 101, affd. 283 N. Y. 595) and Dittiger v. Isal Realty Corp. (290 N. Y. 492, 496). (See, also, Ann. 17 A. L. R. 2d p. 722, and cases cited; see, also, Tkach v. Montefiore Hasp., 289 N. Y. 387.)
*86Finally, and in any event, in view of the general allegations of negligence in the particular complaint, it is improper at this stage of the action to strike the defense setting up the three-year statute applicable to negligence actions. A recovery by the plaintiff on the theory of negligence is possible under this complaint. Under the allegations, the plaintiff may very well take the position at the trial that the gravamen of her action is negligence and that a violation of the provisions of the Multiple Dwelling Law are merely additional grounds urged as negligence or to support a recovery.
Where, as here, on a motion to strike out the defense of a particular Statute of Limitations as inapplicable, the true nature of the cause of action alleged by plaintiff is not free from doubt, speculation should not be indulged in to determine whether or not the cause of action is barred by some Statute of Limitations. Under such circumstances, the motion should be denied and the determination of the applicability and sufficiency of the defense should await a full development of the facts upon the trial of the action. (See Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Glens Falls Ins. Co. v. Reynolds, 3 A D 2d 686; Long Is. R. R. Co. v. Grossman, 3 A D 2d 763; Newfield v. East Riv. Sav. Bank, 263 App. Div. 983.)
The order entered September 9, 1959 granting the motion to strike out the defense of the three-year Statute of Limitations should be reversed, with costs, and the motion denied, with costs.
Stevens, J., concurs with McNally, J.; Breitel, J. P., concurs in result in opinion; Eager, J., dissents in opinion, in which Steuer, J., concurs.
Order entered on September 9, 1959, granting plaintiff’s motion to strike out the defense of the three-year Statute of Limitations, affirmed, with $20 costs and disbursements to the respondent.