Odell v. Solomon
| Citation | 1 N.E. 408,99 N.Y. 635 |
| Parties | ODELL, an Infant, etc., v. SOLOMON and others. |
| Decision Date | 05 May 1885 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
A. L. Sanger, for appellants, Solomon B. Solomon and others.
Alfred Pagelow, for respondent, Sarah R. Odell.
The plaintiff's recovery in this case cannot be sustained on the ground that the appellants failed to perform their covenant with the landlords to keep the premises in question in repair. Such a covenant does not inure to the benefit of a stranger who sustains an injury in consequence of its breach, but can be enforced only by the covenantee or his assigns, and their right to recover depends upon different principles from those which govern in an action by a stranger. The covenantor might be liable to the covenantee for the breach of a covenant to repair, even though the breach were innocently committed, without any negligence, and even without any knowledge or means of knowledge that the premises were out of repair; for he contracts absolutely that he will keep them in repair, and assumes the responsibility of so doing; but he owes no such duty to a stranger to the covenant. A lessee occupying real estate may become liable to a stranger by negligently suffering the demised premises to become dangerous. This liability is independent of any contract between the lessor and lessee. It results from the fact that the lessee is in possession and has the control of the premises, and for that reason he is liable, if, by negligently permitting them to become dilapidated and unsafe, third persons are injured. The foundation of his liability is culpable negligence. He is not, as to third persons, a guarantor of the safety or condition of the premises, but is bound only to reasonable care in his use and occupation of them, so that they may not cause injury to others.
The learned referee in this case found, as matter of fact, that the demised premises and the window-sash which fell out were not kept and maintained in good repair, and safe and proper condition, by reason of which the same fell out and inflicted the injuries sustained by the plaintiff; and further, that said injuries were inflicted solely and only by reason of the negligence of the defendant Solomon. If the finding that the injuries resulted from the negligence of the appellant is supported by any evidence, the judgment must be sustained. But if, on the other hand, there is no evidence to sustain it, the contrary result must follow, the finding having been duly excepted to. The evidence showed that the sash which fell was about six or seven feet high, and two or two and one-half feet wide; that when in position it turned sidewise upon pivots in the middle of its upper and lower ends, projecting into sockets in the upper and lower ends of the window-frames. On the evening of the accident, February 3, 1882, this sash fell from its frame into the street from the second story of the building leased and occupied by the appellant. There was no apparent cause for the fall, the night being calm, and there being no evidence of interference by any one with the sash. After falling and first striking the pavement it struck the plaintiff, inflicting serious injuries upon her. The only evidence in the case explanatory of the cause of the accident consisted of the testimony of John Hughes, a witness...
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