Hyman v. Barrett

• Decision Date: 12 November 1918
• Citation: 121 N.E. 271,224 N.Y. 436
• Parties: HYMAN v. BARRETT.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 436

121 N.E. 271

HYMAN

v.BARRETT.

Court of Appeals of New York.

Nov. 12, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Rosie Hyman against Hopkins G. Barrett. From a judgment of the Appellate Divison (170 App. Div. 205,156 N. Y. Supp. 10) affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Clinton T. Taylor, of White Plains, for appellant.

Moses Feltenstein, of New York City, for respondent.

CARDOZO, J.

The defendant was the landlord of a tenement house in the city of New York. The plaintiff was a tenant, occupying rooms on the second floor. The building was a rear one, and a courtyard and alley gave access to the street. In this courtyard, the plaintiff was injured when about to enter her home. Repairs were in progress. Workmen were standing on a scaffold at the third floor, and were setting pipe in place to carry water to the ground. One of the men dislodged a board or shelf which had been laid across the windowsill. It fell from his hands, and struck the plaintiff. The trial judge charged that the defendant was liable though the workmen were in the service of an independent contractor. The Appellate Division affirmed by a divided court. 170 App. Div. 205,156 N. Y. Supp. 10,

[1][2] We think the charge was error. It makes the landlord's burden heavy beyond precedent. We do not question the rule that a landlord who assumes a contractual duty to a tenant may not escape performance by delegating the duty to another. The rule is illustrated in two cases, Paltey v. Egan, 200 N. Y. 83, 93 N. E. 267, and Sciolaro v. Asch, 198 N. Y. 77, 91 N. E. 263,32 L. R. A. (N. S.) 945, relied on by the court below. In one, the owner, excavating an adjoining lot, pulled down the demised building, and ousted his tenant. That was a breach of his covenant of quiet enjoyment. Moreover, the danger was inherent in the nature of the work. Weinman v. De Palma, 232 U. S. 571, 34 Sup. Ct. 370, 58 L. Ed. 733. In the other, a landlord, who had agreed to furnish elevator service, remained liable for faulty service supplied by his contractor. But in those and like cases (O'Rourke v. Feist, 42 App. Div. 136,59 N. Y. Supp. 157;Peerless Mfg. Co. v. Bagly, 126 Mich. 225, 85 N. W. 568,53 L. R. A. 285, 86 Am. St. Rep. 537) the act or omission complained of was a failure to do the very thing contracted for. That is not the situation here. This defendant was under a duty toward his tenant to use reasonable care in keeping the courtyard safe. If he failed in that duty, he is liable. Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421;Robbins v. Atkins, 168 Mass. 45, 46 N. E. 425. But the failure has not been shown. He might have failed of performance by omitting to repair. That is not the charge. He might have failed by creating or suffering a dangerous condition. O'Rourke v. Feist, Curtis v. Kiley, Robbins v. Atkins, supra. That he did not do. The place was not unsafe because a contractor was installing pipe. Boomer v. Wilbur, 176 Mass. 482, 57 N. E. 1004,53 L. R. A. 172;Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052,33 Am. St. Rep. 692. The defendant therefore was not negligent in permitting tenants to cross the courtyard while the work was going on. He did not omit any precaution that ought to have been observed. There was no reason why he should expect that a workman engaged on such a job would throw a shelf out of the window. He did not fail in his duty because of this casual act of a contractor's servant any more than he would have failed if the servant or the child of a tenant had done the same thing. The danger was not inherent in the work contracted to be done. Boomer v. Wilbur, supra; Blumenthal v. Prescott, 70 App. Div. 560, 565,75 N. Y. Supp. 710;Prescott v. Le Conte, 83 App. Div. 482, 488,82 N. Y. Supp. 411, affirmed 178 N. Y. 585, 70 N. E. 1108;Sulzbacher v. Dickie, 6 Daly, 469. It had its origin in an act of negligence ‘collateral’ to the work. Downey v. Low, 22 App. Div. 460,48 N. Y. Supp. 207;Storrs v. City of Utica, 17 N. Y. 104, 109,72 Am. Dec. 437; Pickard v. Smith, 10 C. B. (N. S.) 470; Dalton v. Angus, 6 App. Cas. 740, 829; Robbins v. Chicago City, 4 Wall. 657, 679, 18 L. Ed. 427;Water Co. v. Ware, 16 Wall. 566, 576, 21 L. Ed. 485.

The distinction is no new one. It runs through all the cases. Boomer v. Wilbur, Robbins v. Atkins, Curtis v. Kiley Peerless Mfg. Co. v. Bagly, supra. One who opens an excavation in the highway is liable in damages if the contractor fails to guard it. Deming v. Terminal Ry. of Buffalo, 169 N. Y. 1, 61 N. E. 983,88 Am. St. Rep. 521;Weber v. Buffalo R. Co., 20 App. Div. 292,47 N. Y. Supp. 7; Downey v. Low, supra. He is not liable if the contractor leaves a pickaxe in the road (Penny v. Wimbleden Council, 1899, 2 A. C. 72, 76, 78), or negligently fires a blast (Herrington v. Village of Lansingburgh, 110 N. Y. 145, 17 N. E. 728,6 Am. St. Rep. 348;Kelly v. Mayor, etc., of N. Y., 11 N. Y. 432; Deming v....