Moore v. Steljes

• Decision Date: 08 July 1895
• Citation: 69 F. 518
• Parties: MOORE v. STELJES.
• Court: U.S. District Court — Southern District of New York

69 F. 518

MOORE v. STELJES.

United States Circuit Court, S.D. New York.

July 8, 1895

Edwin G. Davis, for plaintiff.

Coleman & Donahue, for defendant.

WHEELER District Judge.

According to the complaint, which is demurrer to the ceiling of premises hired of the defendant by the plaintiff's father for himself and family, including the plaintiff, an infant,-- the safety and sufficiency of which the defendant warranted,-- through his negligence, fell upon the plaintiff to her great injury. The demurrer has been argued for the defendant as if the suit was brought upon the warranty; but the hiring and warranty seem to be material only as showing that the plaintiff was rightfully on the premises, and the negligence of the defendant continued to the time of, and caused, the injury, and did not become, after the hiring, the negligence of the father. The gist of the action is this continuing negligence, and the question is whether the allegations of the complaint maintain it. This passage from Wood, Landl. & Ten. (13th Ed.) 735, is quoted in defendant's brief to show that they do not:

'As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant, and not the landlord, is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition; and the only exceptions to the rule appear to arise when the landlord has either (1) contracted with the tenant to repair, or (2) where he has let the premises in ruinous condition, or (3) where he has expressly licensed the tenant to do acts amounting to a nuisance.'

Warranting the safety and sufficiency of the ceiling would hold the defendant to the duty of maintaining it, as much as contracting for its repair, and bring this case within the first exception. A ceiling that will fall is ruinous, and the letting expressly assuming the risk would be a letting in a ruinous condition, and bring the case within the second exception. Payne v. Rogers, 2 H.Bl. 349 was an action against the owner of a house in the occupation of a tenant, for an injury owing to want of repair of supports under the pavement. Objection was made that it should have been brought against the occupier, but the action was maintained because, although the tenant might be liable, the landlord would be liable in the first instance, and to save circuity of action. Shear. & R. Neg. Sec. 502, say:

'Nor does

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