Komar v. Wynn

The plaintiff leased from defendant Aldrich a loft in a business building. Aldrich undertook to repair the roof and employed a contractor to do this work which was performed so carelessly that during its progress rain came through the unprotected portion of the roof and damaged plaintiff’s goods.

Counsel for respondent -Aldrich undertakes to sustain the judgment on the theory that the negligence was that of an independent contractor, and cites some tort cases in which such ruling has quite naturally been made. These cases have no reference whatsoever to one wherein the landlord, as in this case, is under an obligation to keep in repair the roof of a building in which he leases various lofts to different persons. Of course he cannot delegate bis responsibility to third persons.

As the liability of the defendant Aldrich and the inapplicability of the exemption clause in the lease are in our opinion conclusively determined in Randolph v. Feist (23 Misc. 650) and O’Rourke v. Feist (42 App. Div. 136), approved in Hyman v. Barrett (224 N. Y. 436, 438), the judgment must be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, McGoldrick and Levy, JJ.