Kilmer v. White

• Decision Date: 03 June 1930
• Parties: KILMER v. WHITE et al.
• Court: New York Court of Appeals Court of Appeals

254 N.Y. 64

171 N.E. 908

KILMER

v.WHITE et al.

Court of Appeals of New York.

June 3, 1930.

Action by Peter Kilmer against Mollie White and others. From a judgment of the Appellate Division (227 App. Div. 830, 237 N. Y. S. 811), unanimously affirming a judgment of Trial Term, entered on verdict of jury in favor of plaintiff against defendant named, nonsuit having been granted as to defendants Joseph Rubin and wife, defendant named appeals by leave of the Court of Appeals.

Judgment of the Appellate Division and of the Trial Term reversed, with costs, and new trial granted.

Appeal from Supreme Court, Appellate Division, Third department.

William E. Woollard, of Albany, for appellant.

Henry J. Crawford, of Albany, for respondent.

POUND, J.

Appellant had owned a three-story apartment house on Lexington avenue in the city of Albany. Each floor was leased to a separate tenant. She had leased the upper apartment to respondent from month to month without a written lease. His tenancy began on April 20, 1926. On October 28, 1927, appellant had conveyed the premises to Joseph and Jennie Rubin by deed dated that day and recorded on the following day. The Rubins entered into possession. Thereafter, on October 31, 1927, respondent leaned against the railing of the piazza in the rear of his apartment. The top rail, made of a piece of two by four laid flat, gave way, and he lost his balance, falling to the ground below and sustaining injuries for which he has recovered judgment. His contention is that although the rail appeared to be sound, it was in fact rotten and insecurely fastened to the building, and had been for some time before the accident and when respondent moved in. The evidence tended to show that appellant had notice of the defective condition in July or August, 1926, but that the respondent had not discovered it. The action was originally brought against the Rubins also, but a nonsuit was granted as to them. The case was submitted to the jury as one of negligence. The trial justice submitted the case to the jury on the theory, first, that, as respondent had paid the rent to the appellant to the end of the month, and had received no notice of the transfer of ownership, he was still the tenant of the appellant and, secondly, that, if the appellant had reserved to herself the common use of the piazza as a means of access to the roof, which she had undertaken to keep in repair (Dollard v. Roberts, 130 N. Y. 269, 273,29 N. E. 104,14 L. R. A. 238;Hirsch v. Radt, 228 N. Y. 100, 104, 126 N. E. 653), she was bound to exercise due diligence in keeping the railing in repair as a part of the common ways (Peil v. Reinhart, 127 N. Y. 381, 27 N. E. 1077,12 L. R. A. 843), although the landlord is under no general obligation to keep leased premises in repair (Doupe v. Genin, 45 N. Y. 119, 122,6 Am. Rep. 47), or to put the premises in repair before he leases them (Campbell v. Elsie S. Holding Co., 251 N. Y. 446, 448, 167 N. E. 582).

The second proposition has been determined by the jury in favor of respondent as a question of fact, although it does not appear that appellant was more than a mere licensee. The rule as stated is applied only to passages, stairways, and the like, used in common by the different tenants of one building, and not to cases where the tenant merely permits the landlord to pass through leased premises to reach the roof conveniently.

The trial justice erred in charging the jury that, so far as the tenants are concerned, notice of the change in possession and ownership was necessary to change the nature of their tenancy. Respondent had ceased to be the tenant of appellant when the accident occurred. ‘The transfer of the reversion, whether with the consent of the tenant or without it, is a transfer of the lease and of its rights and obligations.’ Matter of O'Donnell, 240 N. Y. 99, 105, 147 N. E. 541, 543. One's liability in negligence for the condition of land ceases when the premises pass out of one's control before injury results. Such is the general rule. Trustees of Village of Canandaigua v. Foster, 156 N. Y. 354, 359,50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575; Wilks v. New York Tel. Co., 243 N. Y. 351, 359, 153 N. E. 444. To this rule, certain exceptions arise. The landlord is liable if he leases premises for the use of the public when he knows that they are unsuited therefor. The nature of the use creates the duty. Junkermann v. Tillyou Realty Co., 213 N. Y. 404, 409,108 N. E. 190, L. R. A. 1917F, 700. Other conditions may give rise to other exceptions. If the landlord has been guilty of conscious deception or has covenanted to repair, he is not exempt from liability for dangerous conditions. Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438. The lessor, in the absence of any agreement or fraud, is not liable to the private tenant for the present or future condition of the premises on any principles that would not be equally applicable to a similar liability imposed upon a grantor in fee after he had parted with possession. Jaffe v. Harteau, supra, page 401, of 56 N. Y.

Another exception for the benefit of third parties may be noted. ‘A person who has been in possession and control of premises on which a nuisance exists, and then leases or in other manner parts with control of the premises under circumstances from which inference may be drawn that he authorized its continuance or profited therefrom, may be held liable for any damages suffered by reason of the continuance of the nuisance thereafter.’ Zolezzi v. Bruce-Brown, 243 N. Y. 490, 498, 154 N. E. 535, 537, 49 A. L. R. 1414;Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786,22 Am. St. Rep. 845; Wilks v. New York Tel. Co., supra; Klepper v. Seymour House Corporation of Ogdensburg, 246 N. Y. 85, 158 N. E. 29, 62 A. L. R. 955.

A nuisance may be a dangerous condition due to negligence.Klepper v. Seymour House Corporation of Ogdensburg, supra; McFarlane v. City of Niagara Falls, 247 N. Y. 340, 160 N. E. 391, 57 A. L. R. 1. But from the act of transfer of title and possession in itself no inference can arise that the vendor either authorized the continuance of the dangerous condition or intended to profit thereby. Zolezzi v. Bruce-Brown, supra.

The question thus arises as to the liability of the vendor for dangerous conditions existing at the time when he unqualifiedly transfers title and possession to the vendee. A proper rule applicable to such cases has been proposed in Tentative Draft No. 4 of the Restatement of the Law of Torts of the American Law Institute as follows:

‘Section 222. General Rule of Non-Liability for Dangerous Conditions Existing at Time Vendor Transfers Possession. Except as stated in Section 223, a vendor of land is not subject to liability for bodily harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.’

‘Section 223. Liability for Concealed Dangerous Conditions Known to Vendor. A vendor of land who conceals or fails to disclose to his vendee any condition whether natural or artificial involving unreasonable risk to persons upon the land, is subject to liability for bodily harm caused thereby to the vendee and others upon the land in his right, after the vendee has taken possession, if

‘(a) the vendee does not know of the condition or the risk involved therein, and

‘(b) the vendor knows of the condition and the risk involved therein and has reason to believe that the vendee will not discover the condition or...