Golob v. Pasinsky

• Decision Date: 17 May 1904
• Citation: 178 N.Y. 458,70 N.E. 973
• Parties: GOLOB v. PASINSKY.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 458

70 N.E. 973

GOLOB

v.PASINSKY.

Court of Appeals of New York.

May 17, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Rosa Golob against Henry Pasinky to recover for personal injuries. From a judgment of the Appellate Division of the Supreme Court (81 N. Y. Supp. 1127), affirming a final judgment dismissing the complaint, plaintiff appeals. Reversed, and judgment of Special Term affirmed.

Parker, C. J., and Gray and Vann, JJ., dissenting.

Theodore B. Chancellor and Abraham Gruber, for appellant.

Alvin C. Cass and Carl Schurz Petrasch, for respondent.

CULLEN, J.

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 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, had not ex delicto for injuries inflicted thereby on the tenant or third parties. Schick v. Fleischhauer, 26 App. Div. 210,49 N. Y. Supp. 962. 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, 29 N. E. 104,14 L. R. A. 238;Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295), 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 houes 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...