The plaintiff, who was an infant of six years of age, was living with her father, who was a monthly tenant of *552two rooms in the rear building of Ho. 248 Stanton street, in the city of Hew York.
After the said tenant had taken possession of the said two rooms, the ceiling of one of the rooms in which said infant was sleeping in his bed, became cracked, fell and injured the plaintiff.
The defendant’s (the landlord’s) liability in damages, as evidenced by the verdict, was predicated upon his failure to repair, the ceiling within a reasonable period after its cracked condition was brought to' his attention, at which time he had promised- that repairs would be made.
The complaint alleges that the defendant was the owner of the. premises Ho. 248 Stanton street; that the father of said infant was a monthly tenant occupying two rooms on the second floor of the rear building thereof, and that it was the duty of the defendant to keep and maintain the ceiling in the apartment in said rear building in good order and repair; that"the defendant disregarded his said duty -in the premises, and.so carelessly and negligently conducted himself that he ■ permitted and allowed the ceiling in ' said premises, so occupied by the plaintiff, to become and remain out-of order and repair,, and that, while the infant plaintiff was lawfully upon the premises, part of the ceiling fell and injured said plaintiff.
On the trial'and upon its opening, the defendant’s counsel moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
The motion was denied and the defendant duly excepted.
This was erroneous. The motion should have been granted.
The motion to dismiss the. complaint in an action, on the ground, that it does not state facts sufficient to constitute a cause of action,is available on the trial, and the granting of it upon that ground is not a matter of discretion, but of legal right. Tooker v. Arnoux, 76 N. Y. 397; Broome v. Taylor, id. 564; Montgomery Co. Bank v. Albany City Bank, 7 id. 459; Coffin v. Reynolds, 37 id. 640; Hand v. Shaw, 20 Misc. Rep. 698.
The owner or landlord of'the premises is only liable in damages to a tenant, in either of the three following instances:
First. If he lets the premises and agrees to keep them in repair, but fails to do so, in consequence of which any one lawfully upon the premises suffers injury.
Second. If he demises premises, knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition. '
*553Third. If he creates a nuisance upon his premises, and then demises them, he remains liable for the consequence of the nuisance as the creator thereof.
But where the landlord has created no nuisance, is guilty of no willful wrong or fraud or culpable negligence and has made no express covenant to make repairs, then the law imposes no liability on him for any injury suffered by any person occupying the premises during the term of the demise.
Ho warranty is implied, on the part of a lessor of a dwelling, that it is safe and convenient. Cleves v. Willoughby, 7 Hill, 83; Franz v. Mulligan, 18 Misc. Rep. 411; Donner v. Ogilvie, 49 Hun, 229; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245; Laird v. McGeorge, 16 Misc. Rep. 70; Doupe v. Genin, 45 N. Y. 119.
Hone of the above-mentioned three distinct cases, upon which a landlord’s liability in damages depends, is set up in the complaint.
The complaint is, therefore, insufficient in law, it contains no • cause of action and the motion to dismiss should have been granted. Miller v. Rinaldo, 21 Misc. Rep. 470; Schwartz v. Apple, id. 513.
This case does not belong to that class, relating to the nonrepairs of those portions of premises which the landlord keeps within his own control, and which-are used as a means of egress and exit to apartments, separately demised to tenants, in which class the courts have held that the landlord’s liability is founded upon the duty which arises from his invitation to his tenants to use the passage-ways and the consequent right, of those invited, to rely upon their reasonably safe condition. Peil v. Reinhart, 127 N. Y. 381.
It is true that an amendment of the complaint might have been allowed by the trial court, bub none was asked for or made, and the objection to the complaint having been taken in due season, the correctness of the ruling must be tested by the complaint as it stood. Tooker v. Arnoux, supra.
The judgment is reversed and a new trial granted, with costs to the appellant to abide the event.
Ooxlak, J., concurs. ■
Judgment reversed and new trial ordered, with costs to appellant to abide event.