Appellate Terms of the Supreme Court of New York, 1916

Drucker v. Cohen

Appellate Terms of the Supreme Court of New York · Decided June 21, 1916 · Bijur

159 N.Y.S. 693 (New York Supplement)

Counsel

David Oggins, of Long Island City, for appellant., Lyman A. Spalding, of New York City (Thomas J. Slcelly, of New York City, of counsel), for respondents.

Opinion of the Court

BIJUR, J.

[1, 2] The testimony offered on behalf of the plaintiff was capable of being interpreted by the jury to the following effect: That on Sunday, the 27th of April, 1914, plaintiff moved into an apartment in defendants’ tenement house, having engaged the same as a monthly tenant; that on Tuesday, the 29th, part of the ceiling fell and injured the plaintiff. Defendants’ janitress, while painters were painting the apartment, during the few days prior to Sunday, the 27th, noticed that the ceiling (at the place where it fell) was wet and that water dripped from it. She went to the floor above, thinking that there might be some overflow, but could not find any trace of water there. She did not report the matter to defendants. After the ceiling had fallen, it was discovered that a water pipe over the spot which fell had been and was still leaking. The janitress and plaintiff both testified that the latter did not see and had no knowledge of the damp spot in the ceiling. The motion to dismiss was made on the following grounds:

“That no negligence had been shown on the part of the defendants; that no notice was given to defendants of any defect in the ceiling before the accident ; that plaintiff has not show she was free from contributory negligence; that plaintiff had control of the ceiling, and knew all about it, and it was not within the control of the landlord when the accident happened, and had not been for four days before.”

It was of course for the jury to determine whether the conduct of defendants’ janitress was negligent. It was quite clear that she did have notice and equally clear that the plaintiff knew nothing about it. The question whether the ceiling was in the control of the landlord when the accident happened is entirely immaterial. The pipe which caused the accident was exclusively in the control of the landlord, both before the making of the lease and at the time of the accident, See Abramowitz v. Schlessinger, 152 N. Y. Supp. 337.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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