Reynolds v. Van Beuren

• Decision Date: 01 March 1898
• Parties: REYNOLDS v. VAN BEUREN et al.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 120

49 N.E. 763

REYNOLDS

v.VAN BEUREN et al.

Court of Appeals of New York.

March 1, 1898.

Appeal from common pleas of New York city and county, general term.

Action by Charles H. Reynolds against Alfred Van Beuren and others. Judgment for plaintiff was affirmed by the appellate division (31 N. Y. Supp. 827), and defendants appeal. Reversed.

Haight, J., dissenting.

Thomas J. O'Neill, for appellants.

Nelson Zabriske, for respondent.

O'BRIEN, J.

On the 26th of September, 1892, the plaintiff was quite severely injured by the falling of a large sign from a building in the city of New York. The immediate cause of the accident, according to the contention of the defendants, was a very strong wind, which prevailed during that day, and which blew the sign from the roof of the building, where it had been placed, into the street, where the plaintiff was passing. The sign is described as a light wooden structure, covered with light galvanized iron, and about 23 feet long and 9 feet high. It was fastened to the roof of the building by four wooden braces, two at each end and two in the middle, attached to the sign and bolted to the joists and timbers of the roof. It was used by the defendants to display handbills for advertising purposes. The jury was justified in finding, from the evidence, that it was not so placed upon the roof of the building as to be entirely safe and secure against the force of high winds, and there were no air holes in it to break the pressure put upon it at such times. The extent of the injury and the damages were also questions for the jury. The plaintiff recovered at the trial, and the judgment was affirmed at the appellate division.

The only question that the appeal presents is the legal responsibility of the defendants for the result of the accident. It appears that the defendants were an advertising firm, using the sign at the time for the purpose of displaying printed advertisements before the public. They were not either the owners or the tenants of the building upon which the sign had been fastened or placed, and they did not erect or cause it to be erected. If it had been shown that they owned or were in possession or in charge of the building, or that they had erected the structure which caused the injury, then a duty or obligation to the public would arise, for a default in the performance of which negligence might be imputed to the defendants. But, so far as appears, the only connection that the defendants had with the sign was through or under the following paper, executed to them by the tenant in possession of the whole building under a lease from the owners in fee: ‘New York, July 4th, 1892. Memorandum of agreement, made and entered into this 15th day of June, by and between Lemuel L. Williams, 1277 Broadway, party of the first part, and A. Van Beuren & Co., party of the second part, witnesseth: That for and in consideration of sixteen dollars per month, payable monthly in advance, the party of the first part leases unto the party of the second part roof of building to be used for advertising purposes, situated No. 1277 Broadway, in the city of New York, for the term of three years from date. We agree to keep roof in repair, in front of and rear of advertising privilege, from coping to scuttle hole. It is agreed that, if the said property is sold or improved upon, the parties of the second part will vacate by the party of the first part giving parties of the second part thirty days' notice, and allowing them to remove all improvements made by them, and refunding the rent pro rata for the unexpired term for which the said roof is leased. Lemuel L. Williams.’ While this paper is called a ‘lease,’ it is manifestly nothing more than a mere license by the tenant in possession to the defendants to go upon the roof of the building and place advertisements upon the sign. It conveys no estate or interest whatever in the realty, and no possession or right of possession to the building or any part of it. The complete possession of the building and all of its appurtenances remained, notwithstanding this paper, in Williams, the tenant. The sign had been erected and placed upon the building long before the defendants acquired, through this paper, the right or privilege of using it for advertising purposes. They found it on the building, and acquired from the tenant the right to use it for a stipulated compensation. The defendants did not even own the sign, and had no right to remove it. As between them and the tenant, it was a fixture, or part of the realty, that belonged to the latter. It was to the tenant a source of revenue, and when the defendants' right to use it expired they could not take it away. So far as appears, it was precisely the same as if the defendants had bargained with the tenant for the right to place posters upon the walls, or any other part of the exterior of the building, for a compensation. It is said that the defendants were bound by the paper which they received from the tenant to keep the roof in repair. It will be seen that it is not signed by the defendants, and they are liable upon the stipulations only because they accepted it and acted upon it. Conceding that the word ‘we,’ in the paper, refers to the defendants and not the tenant, still it cannot fairly be claimed that the obligation to repair the roof, which might be injured by walking upon it, carried with it the obligation to keep in repair the sign or other structure that might be erected upon the roof.

The case was tried upon the theory that the defendants were lessees of part of the building, namely, the roof, and bound to keep it in repair, including all structures on the roof. It is said that the pleadings admit these facts, and, therefore, the defendants are liable. But we think that, when the defendants' answer is fairly construed, it admits nothing more than what appears upon the face of the paper referred to. That simply means that, since the defendants had the right to go upon the roof to post bills upon the sign, the tenant bound them to protect him from the danger of leakage by keeping the roof in proper repair. It would be giving to the paper a construction not contemplated by the parties to hold that the defendants agreed, not only to keep the roof in repair, but the sign as well. Moreover, the stipulation to repair the roof does not apply to the whole roof, but only to that part of it that the defendants had to use when placing the bills upon the sign. It is apparent, therefore, that the defendants' liability must be sustained, if at all, upon what must be conceded to be a very close and doubtful construction of the written license granted to them by the tenant in possession to use the sign for a limited time for a specified purpose. The plaintiff's action is based upon the negligence, or some misconduct or breach of duty, in creating or maintaining a nuisance. It cannot be predicated upon the breach of some contract between the defendants and a third party, since the plaintiff was not acting...