Perry v. Levy

• Decision Date: 14 June 1915
• Docket Number: No. 35.,35.
• Citation: 87 N.J.L. 670,94 A. 569
• Parties: PERRY v. LEVY.
• Court: New Jersey Supreme Court

94 A. 569

87 N.J.L. 670

PERRY

v. LEVY.

No. 35.

Court of Errors and Appeals of New Jersey.

June 14, 1915.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Lottie Perry against Nathan T. Levy. Judgment for plaintiff, and defendant appeals. Affirmed.

Lum, Tamblyn & Colyer, of Newark, for appellant. William Greenfield, of Newark, for respondent.

BLACK, J. This case presents the question whether a landlord of an apartment house, which is divided into six apartments and a store, is liable for injury to a tenant, occupying the top apartment, from the falling of the ceiling, caused by it having become moist, from water coming from the roof, at the times of rain or storms. Both the tenant and the agent of the landlord observed and knew of this condition of the ceiling and that the roof was out of order. The tenant asked to have the ceiling and roof repaired, otherwise she would move out. The agent of the landlord requested the tenant to stay and not to move and promised that the roof and ceiling would be fixed. This court, in the case of Siggins v. McGill, 72 N. J. Law, 265, 62 Atl. 411, 36 L. R. A. (N. S.) 316, 111 Am. St. Rep. 666, after stating the well-recognized rule that the landlord is not liable for injuries sustained by a tenant or his family or guests, by reason of the ruinous condition of the premises demised, said:

"But it is recognized that this rule does not apply to those portions of his property (such as passageways, stairways, and the like) that are not demised to the tenant, but are retained in the possession or control of the landlord for the common use of the tenants and those having lawful occasion to visit them."

The trial court in the charge to the jury applied the principle of that case to the facts of the case under discussion, where the defective roof was the cause of the injury, charging the jury that it made no difference, in its application to this case, between passageways, and stairways retained for the use of the tenants, and a roof which is used to cover all the tenants in the house; that a defective roof of a building containing several apartments is governed by the same rule of law as applies to passageways, stairways, and the like: The tenant had no control over the roof. The landlord is the only one who had such control; and it is his duty to exercise reasonable care to keep the roof in such repair that its condition will not be a source of injury to the tenants underneath.

An exception was noted to this part of the charge, and it is urged before this court as error. We think it is not. The trial court properly applied the principle laid down by this court in the case of Siggins v. McGill, 72 N. J. Law, 264, 62 Atl. 411, 36) L. R. A. (N. S.) 316,...