Junkermann v. Tilyou Realty Co.

• Citation: 108 N.E. 190,213 N.Y. 404
• Parties: JUNKERMANN v. TILYOU REALTY CO. et al.
• Decision Date: 12 January 1915
• Court: New York Court of Appeals

213 N.Y. 404

108 N.E. 190

JUNKERMANN

v.TILYOU REALTY CO. et al.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William Junkermann by Otto J. Junkermann, his guardian ad litem, against the Tilyon Realty Company, Samuel Jankelson, and another. A judgment for the plaintiff against Samuel Jankelson and another was reversed by the Appellate Division as against Samuel Jankelson (160 App. Div. 892,145 N. Y. Supp. 29), and the plaintiff appeals. Judgment of the Appellate Division so far as appealed from reversed, and case remitted to that division for consideration of the facts.Henry M. Dater, of Brooklyn, for appellant.

Hugo Hirsh, of Brooklyn, for respondent.

CARDOZO, J.

In January, 1911, the Tilyou Realty Company leased to Samuel Jankelson for 15 years an amusement park, with its pavilions and other fixtures, at Rockaway Beach. The park was laid out with streets, and included a board walk about 2,000 feet long. This board walk was built upon piles which were driven into the sand. The tenant Jankelson agreed in the lease not to use the premises for any other business than that which was then conducted there, or one substantially the same. He also agreed that the walks and streets would be kept clear and open as thoroughfares. Four months later, on April 22, 1911, he sublet the premises for ten years to his wife and two business associates. There was a like covenant as to the use of the premises and a like covenant that the walks and streets would be kept clear and open as thoroughfares. On the same day the sublessees assigned their lease to the Jankelson Realty Company. Samuel Jankelson is president of that corporation, and one of its chief stockholders . In August, 1911, there was a baby parade at the park. During the parade a part of the board walk collapsed, and the plaintiff, a little boy, who was a spectator, suffered injuries, for which he sues. He recovered a verdict against both Jankelson and the Jankelson Realty Company. At the Appellate Division the judgment against Jankelson was reversed, and the complaint as to him was dismissed. The plaintiff appeals to this court.

[1] The property, as Jankelson sublet it, was intended for public use. It was not suited for anything else. No one foresaw this use more fully than Jankelson himself. He had covenanted with his own lessor that the walk would be kept open as a thoroughfare, and he exacted a like covenant from his own lessees. He knew that the need of maintaining the walk in safety was as great as if it had been dedicated as a public highway. He was himself to profit from the use which he had in view, both as a landlord in receipt of rent, and as a stockholder interested in the company which was to maintain the park. In this situation, if there existed when he made his lease a dangerous condition that was known to him, or by reasonable inspection might have been known, the law charges him with liability.

[2] It has been said that, in the absence of fraud (Steefel v. Rothschild, 179 N. Y. 273, 72 N. E. 112,1 Ann. Cas. 676), there is no law against letting a tumble-down house (Cavalier v. Pope [1906] A. C. 430; Robbins v. Jones [1863] 15 C. B. [N. S.] 221). But that statement depends for its accuracy upon many conditions . It is not true if the building is to be used by the public. It is not true if its location makes it a menace either to the passer-by or to adjoining owners. The tumble-down structure so unsafe as to threaten the traveler in the highway is a nuisance, even though a lessee may be willing to accept it in that state. Steefel v. Rothschild, 179 N. Y. 273, 279,72 N. E. 112,1 Ann. Cas. 676;Timlin v. Standard Oil Co., 126 N. Y. 514, 523,27 N. E. 786,22 Am. St. Rep. 845;Nugent v. B. C. & M. Co., 80 Me. 62, 77, 12 Atl. 797,6 Am. St. Rep. 151. The tumble-down structure designed for the public use, but so unstable as to threaten the safety of those who enter it, is equally a nuisance . Fox v. Buffalo Park, 21 App. Div. 321,47 N. Y. Supp. 788;Id., 163 N. Y. 559, 57 N. E. 1109;Swords v. Edgar, 59 N. Y. 28, 34,17 Am. Rep. 295.

[3] Liability does not arise unless the dangerous condition is known, or with the exercise of due care ought to have been known (Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Timlin v. Standard Oil Co., supra), and so the action has taken the form indifferently of one for nuisance or for negligence (Trustees of Canandaigua v. Foster, 156 N. Y. 354, 50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575; Uggla v. Brokaw, 117 App. Div. 586, 591,102 N. Y. Supp. 857;Lusk v. Peck, 132 App. Div. 426, 432,116 N. Y. Supp. 1051;Id., 199 N. Y. 546, 93 N. E. 377;Hogle v. Franklin Mfg. Co., 199 N. Y. 388, 391,92 N. E. 794,32 L. R. A. [N. S.] 1038). But, whatever the form of pleading, the basis of liability is the same. We may say that those who enter a structure designed for public amusement are there at the invitation, not only of the lessee who maintains it, but also of the lessor who has leased it for that purpose, and that the latter's liability is merely an instance of the general rule which charges an owner of property with a duty toward those whom he invites upon it. Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86,105 N. E. 540; Swords v. Edgar, supra. We may say more simply, and perhaps more wisely, rejecting the fiction of invitation, that the nature of the use itself creates the duty, and that an owner is just as much bound to repair a structure that endangers travelers on a walk in an amusement park as he is to repair a structure that endangers travelers on a highway. Whatever the underlying principle that explains the rule, the rule itself is settled. The owner of such a park must use all reasonable care to make its structures safe before he leases it for his profit. In Lusk v. Peck, supra, the defendant had leased a grand stand and bleachers to be used for baseball games. The lease was for a term of years. The plan of the structure was proper. Some of the timbers, however, had decayed before the lease was made. Because inspection would have disclosed the defect, the landlord was held liable. The same rule of liability has been enforced under many varying conditions. Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310, 66 N. E. 968,61 L. R. A. 829; Fox v. Buffalo Park, supra; Timlin v. Standard Oil Co., supra; Swords v. Edgar, supra; Connell v. Jankelson, 163 App. Div. 592,148 N. Y. Supp. 992; Francis v. Cockrill, L. R. (5 Q. B.) 501. Since the duty is imposed by law, it cannot be evaded...