Sterger v. Vansiclen

• Decision Date: 03 May 1892
• Citation: 132 N.Y. 499,30 N.E. 987
• Parties: STERGER v. VANSICLEN.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 499

30 N.E. 987

STERGER

v.VANSICLEN.^*

Court of Appeals of New York,

Second Division.

May 3, 1892.

Appeal from supreme court, general term, second department.

Action by Wilhelmine Sterger against J. Wyckoff Vansiclen. A judgment of the circuit court, dismissing the complaint, was affirmed by the general term, and plaintiff appeals. Affirmed.

James D. Bell, for appellant.

A. Simis, Jr., for respondent.

The other facts fully appear in the following statement by PARKER, J.:

By this action the plaintiff seeks to recover damages for injuries sustained under the following circumstances: On the afternoon of June 20, 1886, while descending the steps leading from the ground to the rear stoop of premises known as ‘No. 68 Schenck Avenue,’ Brooklyn, a step broke, causing her to fall and resulting in injury. The premises were owned by the defendant, but occupied by one Leopold, a tenant, who entered into possession about the 1st of March, 1884. The plaintiff occupied the house next adjoining, and between four and five feet from the one in which Leopold resided. The premises were separated in the rear by a fence through which an opening had been made by knocking off some of the boards. It appeared that the defendant knew of the condition of the steps and agreed to repair them, and he offered evidence tending to show that he made an agreement with the tenant by which he was to make the repairs for a fixed sum, which was deducted from the rent. This testimony was to some extent controverted; and, plaintiff's counsel having asked to go to the jury before the court dismissed the complaint, the refusal of such request is assigned for error on this review. But appellant's contention cannot avail if, adopting the view of the evidence most favorable to her, a dismissal of the complaint was required.

PARKER, J., ( after stating the facts.)

We are of the opinion that the evidence does not permit a recovery. No contractual relation exists between the plaintiff and defendant. The covenant of the landlord to repair does not inure to the benefit of a stranger sustaining injury because of its breach. Odell v. Solomon, 99 N. Y. 635, 1 N. E. Rep. 408. But when the occasion of the injury constitutes a nuisance as to the party complaining, then a landlord may be chargeable in damages, on the ground that he maintains a nuisance, where the contract of letting contains a covenant authorizing him to re-enter for the purpose of making repairs. Ahern v. Steele, 115 N. Y. 203.¹We are thus brought to the question whether the decayed steps in the rear of defendant's premises, leading from the ground to a stoop, constituted a nuisance as to the plaintiff, who occupied an adjoining house. If so, the defendant, by reason of his covenant to repair, may be responsible for the injury occasioned to plaintiff while walking down them. This inquiry admits of but one answer, and does not seem to be worthy of the citation of authority, but it may not be out of place to refer to the cases cited by the appellant. It may be observed, in passing, that the owner may ordinarily exercise such dominion over, and make such use of, his real estate, as he choses, provided the rights of others are not thereby violated. No right of the plaintiff was violated. The enjoyment of the premises occupied by her was not interfered with. Had she remained on them the injury would not have occurred. But she chose to go on private property, and up or down back steps, over which she had no authority, and as to which she had acquired no such interest, by contract or otherwise, as would have entitled her to demand as a right that the so-called nuisance be abated. As to her, it was not a nuisance, because it did not invade either her property or personal rights. Murphy v. City of Brooklyn, 98 N. Y. 642. Appellant cites Timlin v. Oil Co., 126 N. Y. 514, 27 N. E. Rep. 786, where it is held that, if an owner lease premises without abating an existing nuisance, he is liable to respond in damages for an injury resulting therefrom. But that case has no application here. The nuisance complained of was dangerous to the public and the adjoining owner. The wall of a building was so out of repair that it fell over upon the tracks of a railroad company, killing plaintiff's intestate while engaged in repairing the track. In Beck v. Carter, 68 N. Y. 283, the owner made an excavation on his own land, but so near to the highway as to render travel thereon dangerous, and failed to guard it; and the instruction of the trial court to the jury that the excavation was a nuisance if made in the highway, or so near it that a person exercising ordinary care was liable to fall into it, was sustained; the court holding that the circumstances of that case imposed a duty on the defendant to protect the excavation. It appeared that the excavation had been made in a place long used by the public, and the character of the user was thus described by the court: ‘It was not the case of a bare permission by the owner to cross his land adjoining a public street. The land had, by use long continued, been made, for the time being, a public place, and part of the highway.’ While the court held that the situation presented by the evidence supported the judgment, it did not fail to emphasize the general rule that the owner of property has the right to put his property to such use as he chooses, ‘and in the absence of special circumstances, if a person traveling on a highway deviates therefrom, and falls into a pit or excavation on the adjacent land, the owner is not responsible for the resulting injury.’ There are cases where the use to which an owner of property puts it is of such a public character that he is bound to observe reason able care in keeping it in such a condition as to save harmless those who are invited to come on to it for the benefit and profit of the owner. Cases of this kind are considered by this court in Clancy v. Byrne, 56 N.Y. 129. A drayman, in the ordinary course of his business, drove a horse upon pier No. 31, North river; and, a rotten plank giving way, the horse fell through and was killed. In the opinion by FOLGER. J., it is said that the...