Boden v. Scholtz

Appellate Division of the Supreme Court of New York

Boden v. Scholtz

101 A.D. 1, 91 N.Y.S. 437

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 15, 1905

StatusPublished

Cited by18 cases

This text of 101 A.D. 1 (Boden v. Scholtz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boden v. Scholtz, 101 A.D. 1, 91 N.Y.S. 437 (N.Y. Ct. App. 1905).

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Opinion

Hirschberg, P. J.:

The action is brought to recover damages for personal injuries ¿sustained by the plaintiff through the falling of a ceiling, in the din[2]*2ing room of an apartment which she had rented from the defendant. The complaint alleges and evidence was given tending to prove that the defendant had agreed to repair the ceiling, and that'the injury-resulted from his breach of that contract. The obligation being wholly contractual, no action in tort will lie for a violation of the agreement. (Schick v. Fleischhauer, 26 App. Div. 210; Frank v. Mandel, 76 id. 413; Goldberg v. Besdine, Id. 451; Goluback v Almodo, 79 id. 636; Stelz v. Van Dusen, 93 id. 358.) The general rule is that an action for negligence can only be maintained when the violated duty is one which is imposed by law.

The learned counsel for the appellant concede in their brief that-no liability in tort attaches to the defendant for his failure to fulfill fhe covenant, but contend that he' was liable on the theory that the injury resulted from a defective condition in the roof of the building which was under his control and of which defective condition he had ample notice. - Assuming that the defendant was obliged by law to keep the roof in repair, it is a sufficient answer to the appellant’s contention that there was. no evidence given establishing either that the fall of the appellant’s ceiling resulted from a defective condition in'the roof of the building or that the defendant had notice of such defective condition. Moreover, the claim now insisted on. was not presented at the trial and the general rule is that a party must be held oh appeal to the theory of the trial. (Home Ins. Co. v. Western Trans. Co., 51 N. Y. 93; Drucker v. Manhattan Railway Co., 106 id. 157; People ex rel. Warschauer v. Dalton, 159 id. 235, 237; Snider v. Snider, 160 id. 151.)

The judgment should be affirmed.

Present — Hirschberg, P. J., Bartlett, Woodward and Jenks, JJ.

Judgment unanimously affirmed, with costs.

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Hirschberg, P. J.:

The action is brought to recover damages for personal injuries ¿sustained by the plaintiff through the falling of a ceiling, in the din[2]*2ing room of an apartment which she had rented from the defendant. The complaint alleges and evidence was given tending to prove that the defendant had agreed to repair the ceiling, and that'the injury-resulted from his breach of that contract. The obligation being wholly contractual, no action in tort will lie for a violation of the agreement. (Schick v. Fleischhauer, 26 App. Div. 210; Frank v. Mandel, 76 id. 413; Goldberg v. Besdine, Id. 451; Goluback v Almodo, 79 id. 636; Stelz v. Van Dusen, 93 id. 358.) The general rule is that an action for negligence can only be maintained when the violated duty is one which is imposed by law.

The learned counsel for the appellant concede in their brief that-no liability in tort attaches to the defendant for his failure to fulfill fhe covenant, but contend that he' was liable on the theory that the injury resulted from a defective condition in the roof of the building which was under his control and of which defective condition he had ample notice. - Assuming that the defendant was obliged by law to keep the roof in repair, it is a sufficient answer to the appellant’s contention that there was. no evidence given establishing either that the fall of the appellant’s ceiling resulted from a defective condition in'the roof of the building or that the defendant had notice of such defective condition. Moreover, the claim now insisted on. was not presented at the trial and the general rule is that a party must be held oh appeal to the theory of the trial. (Home Ins. Co. v. Western Trans. Co., 51 N. Y. 93; Drucker v. Manhattan Railway Co., 106 id. 157; People ex rel. Warschauer v. Dalton, 159 id. 235, 237; Snider v. Snider, 160 id. 151.)

The judgment should be affirmed.

Present — Hirschberg, P. J., Bartlett, Woodward and Jenks, JJ.

Judgment unanimously affirmed, with costs.

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101 A.D. 1, 91 N.Y.S. 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boden-v-scholtz-nyappdiv-1905.

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