Marks v. Nambil Realty Co.
| Citation | 245 N.Y. 256,157 N.E. 129 |
| Parties | MARKS v. NAMBIL REALTY CO., INC. |
| Decision Date | 31 May 1927 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Action by Wolf Marks against the Nambil Realty Company, Inc. From a judgment of the Appellate Division (218 App. Div. 763, 218 N. Y. S. 815), affirming by a divided court a judgment of the Trial Term, entered on a verdict of a jury in favor of plaintiff, defendant appeals.
Affirmed
Appeal from Supreme Court, Appellate Division, First department.
Walter G. Evans and Alfred W. Andrews, both of New York City, for appellant.
Charles Marks and William Dike Reed both of New York City, for respondent.
[1][2] Plaintiff was the tenant of the ground floor and cellar of a building in the city of New York. A flight of stairs leading to the cellar fell out of repair. The iron stringer supporting the lowest step was planted in concrete which had become broken and hollow. The defendant, the landlord, was notified of the defect and promised to correct it. The promise was gratuitous, for the stairs were not for the common use of all the occupants of the building, but were wholly within the premises demised. There was thus no duty to repair, since the building was not subject to the Tenement House Law (Consol. Laws, c. 61), but was leased for business uses (Altz v. Leiberson, 233 N. Y. 16, 134 N. E. 703). The Landlord, however, did repair, and made a bungling job of it. The broken concrete was not reset, but the fragments were cleared away, and a piece of wood, ill-secured, was inserted between the stringer and the ground. The plaintiffexpressed misgivings as to the safety of the prop, but was assured by the landlord's agent that it would ‘last forever.’ The event belied the prophecy. Step and prop collapsed under the burden of the plaintiff's weight. He was thrown to the ground, and suffered injuries for which he sues.
The landlord, though a volunteer in making the repairs, is liable, none the less, for negligence in making them. ‘It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.’ Glanzer v. Shepard, 233 N. Y. 236, 239, 135 N. E. 275, 276 (23 A. L. R. 1425). The distinction in such cases is the old one between nonfeasance and misfeasance. Thorne v. Deas, 4 Johns. 84, 96;Siegel v. Spear & Co., 234 N. Y. 479, 483, 138 N. E. 414, 26 A. L. R. 1205; Bohlen, Studies in the Law of Torts, p. 80. A landlord in these circumstances is not charged with liability on the basis of the nonperformance of a voluntary promise. He is charged with liability, because, having chosen to perform, he has thereby become subject to a duty in respect of the manner of performance. The cases are many in which liability has been enforced upon that footing for the protection of a tenant. Gregor v. Cady, 82 Me. 131, 19 A. 108,17 Am. St. Rep. 466;Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548;Buldra v. Henin, 212 Mass. 275, 98 N. E. 863;Miller v. Fisher, 111 Md. 91, 73 A. 891,50 L. R. A. (N. S.) 295;Charney v. Cohen, 94 N. J. Law, 381, 383, 110 A. 698;Mann v. Fuller, 63 Kan. 664, 66 P. 627.
[3] We recall these familiar principles because they seem to have been overlooked in cases in the Appellate Division relied on by the defendant here. Marston v. Frisbie, 168 App. Div. 666, 154 N. Y. S. 367;Wynne v. Haight, 27 App. Div. 7, 50 N. Y. S. 187. There is a suggestion, if not a ruling, in these cases, that to make the landlord liable, the negligent repairs must have aggravated the defect, so that what was dangerous before became more dangerous than ever. We cannot yield assent to this restriction of the...
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