132 N.Y. 499, Sterger v. Vansiclen
| Date | 03 May 1892 |
| Citation | 132 N.Y. 499 |
| Docket Number | . |
| Parties | WILHELMINE STERGER, Appellant, v. J. WYCKOFF VANSICKLEN, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Page 499
Argued March 14, 1892.
Page 500
COUNSEL
James D. Bell for appellant. If the premises were in an unsafe and insecure condition, to defendant's knowledge when he rented them, he is liable in this action, although he was not
Page 501
in actual possession at the time the injury happened. (Hungerford v. Bent, 8 N.Y. Supp. 614; Edwards v. R. R. Co., 98 N.Y. 247; Ahern v. Steel, 115 id. 203; Davenport v. Ruckman, 37 id. 568, 574; Timlin v. S. O. Co., 126 id. 514.)The duty of a landlord of demised premises, which he has agreed to keep in repair towards persons lawfully upon the premises, is to keep them in such state of repair as that they will not suffer injury. (Palmer v. Deering, 93 N.Y. 7; Pell v. Reinhart, 127 id. 381; Odell v. Solomon, 99 id. 635; Anderson v. Kryter, 9 Cent. L. J. 385.)
A. Simis, Jr., for respondent. The plaintiff was not upon the premises where she was injured by reason of any invitation from defendant, either express or implied. He was under no duty or obligation to her to keep said premises in repair; consequently there was no negligence as to her which can give a right of action. (Larremore v. C. P. I. Co., 101 N.Y. 391.) The defendant's covenant with Mrs. Leopold to keep her premises in repair, upon which plaintiff relies, does not inure to the benefit of the plaintiff; such covenant can only be enforced by the covenantee or his assigns. (Odell v. Solomon, 99 N.Y. 635.) If it be held that the defendant did agree to repair, then such a promise, before it could create a liability, would have to bear a new consideration. (Flynn v. Hatton, 43 How. Pr. 333.)
PARKER, J.
We are of the opinion that the evidence does not permit a recovery.
No contractural relation exists between the plaintiff and defendant. The covenant of the landlord to repair does not inure to the benefit of a stranger sustaining injury because of its breach. (Odell v. Solomon, 99 N.Y. 635.)
But when the occasion of the injury constitutes a nuisance as to the party complaining, then a landlord may be chargeable in damages on the ground that he maintains a nuisance, where the contract of letting contains a covenant authorizing him to re-enter for the purpose of making repairs. (Ahern v. Steele, 115 N.Y. 203.)
Page 502
We are thus brought to the question whether the decayed steps in the rear of defendant's premises leading from the ground to a stoop constituted a nuisance as to the plaintiff, who occupied an adjoining house. If so, the defendant, by reason of his covenant to repair, may be responsible for the injury occasioned to the plaintiff while walking down them.
This inqury admits of but one answer and does not seem to be worthy of the citation of authority, but it may not be out of place to refer to the cases cited by the appellant.
It may be observed in passing that the owner may ordinarily exercise such dominion over and make such use of his real estate as he chooses, provided the rights of others are not thereby violated.
No right of the plaintiff was violated. The enjoyment of the premises occupied by her was not interfered with. Had she remained on them the injury would not have occurred. But she chose to go on private property and up or down back steps, over which she had no authority and as to which she had acquired no such interest by contract, or otherwise, as would have entitled her to demand as a right that the so-called nuisance be abated. As to her it was not a nuisance, because it did not invade either her property or personal rights. (Murphy v. City of Brooklyn, 98 N.Y. 642.)
Appellant cites Timlin v. Standard Oil Company (126 N.Y. 514), where it is held that if an owner lease premises without abating an existing nuisance, he is liable to respond in damages for an injury resulting therefrom. But that case has no application here. The nuisance complained of was dangerous to the public and the adjoining owner. The wall of a building was so out of repair that it fell over upon the tracks of a railroad company, killing plaintiff's intestate while engaged in repairing the track.
In Beck v. Carter (68 N.Y. 283), the owner made an excavation on his own land, but so near to the highway as to render travel thereon dangerous and failed to guard it, and the instruction of the trial court to the jury that the excavation was a nuisance if made in the highway, or so near it that a
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person exercising ordinary care was liable to fall into it, was sustained. The court holding that the circumstances of that case imposed a duty on the defendant to protect the excavation.
It appeared that the excavation had been made in a place long used by the public, and the character of the user was thus described by the court: 'It was not the case of a bare permission by the owner to cross his land adjoining a public street. The land had, by use long continued, been made, for the time being, a public place and part of the highway.'
While the court held that the situation presented by the evidence supported the judgment, it did not fail to emphasize the general rule...
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