The action is for personal injuries. The complaint alleges that the defendant was the owner of a tenement house in the city of New York divided into separate apartments, one of which, on the upper floor, was rented by the plaintiff's husband and occupied by him and his family. It further alleges "that the defendant had and reserved to himself control of the roof and ceilings in said building and apartments therein, as well as other parts and portions of said building during all the times herein mentioned." It is also charged that the defendant negligently suffered the roof of the said building and the ceilings in the plaintiff's apartment to become and remain in so defective and dangerous condition that "by reason of the carelessness and negligence on the part of the defendant in permitting the roof of said building and the ceilings of said apartment to be and remain in a dangerous condition as aforesaid, a large piece of plaster or other substance from the ceiling in one of the rooms in said apartment occupied by plaintiff, fell and struck plaintiff on the head and back." To this complaint the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action.
The learned judge at Special Term overruled the demurrer, holding that while there was no sufficient connection pleaded between the condition of the roof and the falling of the ceiling, the allegation that the defendant reserved control of the ceiling was sufficient to render him responsible for its condition. The Appellate Division reversed the judgment below *Page 461 on the ground that the liability of the landlord for a breach of his covenant to repair was simply ex contractu for the cost of the necessary repairs and not ex delicto for injuries inflicted thereby on the tenant or third parties. (Schick v.Fleischhauer, 26 App. Div. 210.) The learned court conceded the rule which imposes liability on landlords for negligence in maintaining the stairs, halls and ways of passage over which they retain control and which are used in common by the various tenants (Dollard v. Roberts, 130 N.Y. 269; Looney v.McLean, 129 Mass. 33), but held that as the ceiling was a part of the demised premises, the rule did not apply to the present case. It will thus be seen that the difference of opinion in this case relates not so much to the rules governing the liability of landlords of apartment houses for defects in their condition as it does to the proper construction of the plaintiff's pleading. Doubtless the demise of an apartment includes a demise of the ceilings therein, and in such a case the liability of the defendant would be governed by the ordinary rule which obtains between landlord and tenant. But the plaintiff expressly alleges that the defendant "had and reserved to himself control of the roof and ceilings in said building and apartments therein." This is an allegation of fact, not that the defendant covenanted to repair the roof of the building and the ceilings, but that he reserved to himself control of the same; in other words, that they did not constitute a part of the demised premises. It may be very improbable that a landlord reserved or excepted the ceiling of an apartment from a demise of the apartment, but unless it can be said that such a reservation is impossible as a matter of law, I do not see how the effect of the plain and specific allegation of the complaint in this respect can be avoided. However this may be, there is no such difficulty with the reservation of the roof. As a matter of common custom and practice in apartment houses it is not demised to any particular tenant, but possession and control is retained by the landlord. Nor, so far as the pleading is concerned, do we see any break in the chain of causation between the negligence of the *Page 462 defendant in respect to the condition of the roof and the injury to the plaintiff. The case of Allinger v. McKeown (30 Misc Rep. 275; 50 App. Div. 628), cited by the learned trial judge, is not in point. There the action was for personal injuries. It was alleged that a dumbwaiter or elevator in common use by all the tenants was negligently suffered to become out of repair, and that while the plaintiff was at the shaft, without any fault on her part, the waiter fell and injured her. The defect of the pleading in that case lay here: It did not aver that the fall of the elevator was occasioned by the defective condition in which it was allowed to remain by the defendant, and for all that was stated in the complaint it might have fallen from the independent act of some third party, to which its defective condition did not contribute. Logically the objection is well founded and had it been taken by demurrer when pleadings are to be scanned with some strictness it should have prevailed. But as it was raised only on the trial after proof given it seems a little liberality by way of permitting an amendment to the complaint might well have been extended to the plaintiff. There is no such defect in the complaint before us. The allegation is explicit that by the negligence of the defendant the roof was permitted to become dangerous and out of repair and that by the dangerous condition caused by the negligence of the defendant the plaster of the ceiling fell and injured the plaintiff. How the defective condition of the roof caused the ceiling to fall was a matter of proof, not of pleading.
The judgment of the Appellate Division should be reversed and demurrer overruled, with costs in all the courts, and that of the Special Term affirmed, with leave to the defendant, within twenty days, on payment of costs, to withdraw demurrer and serve answer.
O'BRIEN, BARTLETT and MARTIN, JJ., concur; PARKER, Ch. J., GRAY and VANN, JJ., dissent on opinion of PATTERSON, J., below.
Judgment reversed, etc. *Page 463