233 N.Y. 16, Altz v. Leiberson

Citation:233 N.Y. 16
Party Name:ELLEN MCN. ALTZ, Respondent, v. LOUIS LEIBERSON, Appellant.
Case Date:February 28, 1922
Court:New York Court of Appeals
 
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233 N.Y. 16

ELLEN MCN. ALTZ, Respondent,

v.

LOUIS LEIBERSON, Appellant.

New York Court of Appeal

February 28, 1922

Argued December 1, 1921.

COUNSEL

Edward P. Mowton for appellant. The complaint should have been dismissed because it failed to allege or establish facts sufficient to constitute a cause of action. ( Brackett v. Griswold, 112 N.Y. 454; McNeil v. Cobb,

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186 A.D. 177; Kushes v. Ginsberg, 99 A.D. 417; 188 N.Y. 630; Renard v. Grenthal, 81 Misc. 135; Fairchild v. Leo, 149 A.D. 31; Pagnillo v. Mack Paving & Construction Co., 142 A.D. 491; Golob v. Pasinsky, 178 N.Y. 458; Witty v. Matthews, 52 N.Y. 512; Bartzel v. Rhinelander, 179 A.D. 735; Elefante v. Pizitz, 182 A.D. 819, 821; 230 N.Y. 567.)

Hector M. Hitchings for respondent. The motion to dismiss the complaint was properly denied. ( Queeney v. Willie, 225 N.Y. 374; Frank v. Simon, 109 A.D. 38; Harris v. Boardman, 68 A.D. 436; Pincus v. Schlecter, 167 A.D. 361; Drucker v. Cohen, 159 N.Y.S. 693; Nutter v. Colyer, 180 Mich. 107; Fleischer v. Dworsky, 90 Misc. 628; Tauber v. Rochelsky, 90 Misc. 382; Rich v. N.Y. C. & H. R. R. R. Co., 87 N.Y. 382; Burch v. Int. R. T. Co., 187 N.Y. 388; Barrett v. L. O. B. Imp. Co., 174 N.Y. 310; Athorf v. Wolfe, 22 N.Y. 355; Van Pelt v. De Graw, 4 N.Y. 100.)

CARDOZO, J.

The plaintiff in November, 1917, was a tenant in the defendant's apartment house in the city of New York. She was injured while in her room by a falling ceiling, which the defendant, after timely notice of the danger, had omitted to repair. So, at least, the jury found, and the unanimous affirmance at the Appellate Division carries with it the presumption that there is evidence to sustain the verdict. The question to be determined is whether the omission was a breach of duty.

At common law there was no duty resting on the landlord of an apartment house to repair the rooms demised ( Golob v. Pasinsky, 178 N.Y. 458).His duty of repair was limited to those parts of the building which the occupants enjoyed in common ( Dollard v. Roberts, 130 N.Y. 269). The Tenement House Law (Consol.

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Laws, ch. 61) has changed the measure of his burden. "A tenement house' is any house or building, or portion thereof, which is either rented, leased, let or hired out, to be occupied, or is occupied, in whole or in part, as the home or residence of three families or more living independently of each other, and doing their cooking upon the premises, and includes apartment houses, flat houses and all other houses so occupied' (Tenement House Law, sec. 2, subd. 1). 'Every...

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