Botwin v. Rothkopf Realty Co.

128 Misc. 15, 217 N.Y.S. 192

Opinion

Per Curiam.

Judgment unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellants to "abide the event.

It was error to dismiss the complaint as the plaintiffs had made out a prima jade case. While a landlord who is not obligated to make repairs is not liable to a tenant except for active negligence in the making of them if he voluntarily undertakes the work (Wynne v. Haight, 27 App. Div. 7; Lipschitz v. Rapaport, 133 N. Y. Supp. 385; Schatzky v. Harber, 164 id. 610; Marston v. Frisbie, 168 App. Div. 666), he is liable where he rents the premises to different tenants and negligently fails to keep the parts that are used in common in a reasonable state of repair, and this applies to water pipes as well as to other things. (Levine v. Baldwin, 87 App. Div. 150; Nash v. Rocktaschel, 120 Misc. 588.)

In the latter situation the fact that the lease of one of the tenants contains a clause providing that the landlord shall not be liable for damage by water, does not relieve the landlord where the damage is caused by defects in portions of the building under his control and he has been negligent in failing to repair. (Garrity v. Propper, 209 App. Div. 508; Lewis Co. v. Metropolitan Realty Co., 112 id. 385.) While the plaintiffs’ proof might not have established any active negligence by defendant or its agent, the plumber, when he came to fix the pipe, plaintiffs did not have to succeed on that ground.

Present, Cropsey, MacCrate and Lewis, JJ.