Nyamco Associates, Inc. v. Cherniaeff

The trial judge erred in holding as matter of law that the clause in the present lease relied upon by the respondent relieved the landlord from liability to the tenant for injury sustained through water damage caused by the landlord’s affirmative negligence. This clause differed materially from that involved in the case of Kirshenbaum v. General Outdoor Advertising Co. (258 *307N. Y. 489). The present clause, on the other hand, is identical with that involved in Drescher Rothberg Co. v. Landeker (140 N. Y. Supp. 1025). The holding in the latter case that such a clause did not relieve a landlord from liability for affirmative negligence was approved in Kessler v. The Ansonia (253 N. Y. 453) and again in the Kirshenbaum case.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Callahan, Frankenthaler and Shientag, JJ.