Pratt, Hurst & Co. v. Tailer
| Decision Date | 27 November 1906 |
| Citation | 186 N.Y. 417,79 N.E. 328 |
| Parties | PRATT, HURST & CO., Limited, v. TAILER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Pratt, Hurst & Co., Limited, against Edward N. Tailer, sole surviving executor and trustee of the will of Thomas Suffern, deceased, and another. There was an order of the Appellate Division (100 N. Y. Supp. 16), reversing an interlocutory judgment at Special Term, and overruling a demurrer to plaintiff's second cause of action, and sustaining a demurrer to the second separate defense. Defendants by permission appeal, and questions were certified to the Court of Appeals. Affirmed.
The following questions were certified by the Appellate Division to the Court of Appeals: (1) Does the second cause of action set forth in the complaint herein state facts sufficient to constitute a cause of action? (2) Is the second separate defense contained in the answer of the defendants herein insufficient in law upon the face thereof?
Edward B. Whitney and Winston H. Hagen, for appellants.
Arthur L. Marvin and Rollin M. Morgan, for respondent.
The plaintiff corporation is a tenant of a loft in a building of which the defendants are landlords. In this suit the plaintiff seeks to recover the loss which it has sustained by reason of the leakage of water through the roof of the building, whereby its goods were damaged. In the first cause of action set out in the complaint it is alleged that the building was six stories high, and that each loft was separately leased and occupied by a separate tenant; that the elevators, stairs, hallways, and roof remained in the possession of the landlords; and that the landlords, without the knowledge or consent of the plaintiff, made an agreement with the Holmes Electric Protective Company permitting that corporation to place and install wires, switchboard stations, or other apparatus or appliances for a testing station upon the roof of the building, in consideration of which use the Holmes Electric Protective Company agreed to keep the roof in good order and repair. It is further alleged that the said Holmes Electric Protective Company did place and install certain wires, switchboards, and stations on the roof, and use the roof for the purpose mentioned, and that such use necessitated the presence of many workmen upon the roof, and their walking thereon several times each week and for long periods, and that the roof was not constructed for or adapted to such use, and that such use was calculated to and did injure and damage the roof, and cause it to be broken, and cause holes to appear therein much sooner than would have been the case if exposed simply to the usual wear and tear and action of the elements. It is further alleged that the defendants well knew that the roof was not suitable or adapted to such use, and that it would be greatly injured thereby; that the Holmes Electric Protective Company negligently allowed the roof to become and remain worn and broken in consequence of such use thereof, and failed to repair the holes and breakage, of which the defendants, their agents, or servants had full knowledge; and that in consequence of the premises, and the negligence of the defendants, their agents, or servants, rain entered through the breaks or holes thus made and allowed to remain in the roof, and injured the plaintiff's goods, to its damage in the sum of $1,201.38. By the second cause of action the plaintiff sought to recover the same amount as for a breach of a contract to repair contained in the lease. This cause of action set out...
To continue reading
Request your trial
-
Johnson v. Prange-Geussenhainer Co.
...214 Ala. 545, 108 So. 362;Randolph v. Feist, 1898, 23 Misc. 650, 52 N.Y.S. 109; or some affirmative misconduct, Pratt, H. & Co. v. Tailer, 1906, 186 N.Y. 417, 79 N.E. 328 (lessor permitted third party to use roof for purpose for which it was not adapted causing leaks); Simmons v. Pagones, s......
-
Kirshenbaum v. Gen. Outdoor Advertising Co.
...v. Doyle, 222 Mass. 155, 109 N. E. 902, L. R. A. 1916F, 1121;Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548;Pratt, Hurst & Co. v. Tailer, 186 N. Y. 417, 421,79 N. E. 328, 329. ‘Of course, it is perfectly plain that the landlords would not be relieved of liability for leakage occasioned by......
-
Batton v. Elghanayan
... ... Stout, 38 N.Y.2d 607, 612, 381 N.Y.S.2d 848, 850, 345 N.E.2d 319, 322; Pratt, Hurst & Co. v. Tailer, 186 N.Y. 417, ... 421, 79 N.E. 328, 329; Mirabel and Levy, Law of ... ...
-
Freddi-Gail, Inc. v. Royal Holding Corp.
...apparently a case of nonfeasance; Kessler v. The Ansonia, 253 N.Y. 453, 171 N.E. 704 (Ct.App.1930), supra; Pratt, Hurst & Co. v. Tailer, 186 N.Y. 417, 79 N.E. 328 (Ct.App.1906); Garrity v. Propper, 209 App.Div. 508, 205 N.Y.S. 192 (1924); Lowy & Feffer v. Mor-Ro Realty Corp., 223 App.Div. 6......
-
Overruling by implication and the consequent burden upon bench and bar.
...249, 472 N.Y.S.2d 368, 371 (App. Div. 1st Dep't 1984), aff'd, 64 N.Y.2d 670, 474 N.E.2d 612 (1984). (19) Pratt, Hurst & Co. v. Tailer, 186 N.Y. 417, 421, 79 N.E. 328, 329 (1906) ("[I]t is perfectly plain that the landlords would not be relieved of liability for leakage occasioned by the......