Bronheim v. Kelleher

257 A.D. 849, 12 N.Y.S.2d 496, 1939 N.Y. App. Div. LEXIS 8154

Opinion

From a judgment dismissing the plaintiff's complaint at the close of her case, the plaintiff appeals. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event. The plaintiff attempted to establish the defendant’s liability on several theories: (1) That the premises were let for a public use and, at the time of the letting, defects existed therein which made the premises unsuited and dangerous for public use. Evidence tending to establish this theory was excluded. The evidence was competent and should have been admitted. (Swords v. Edgar, 59 N. Y. 28; Lusk v. Peck, 199 id. 546; Eckler v. Rochester Packing Co., 264 id. 605.) (2) That the defendant as landlord retained control of the roof and had let the roof to another tenant. This evidence was also admissible and its exclusion was error. (3) That the tenant in possession at the time of the accident Was a monthly tenant and not a tenant under a written lease. If this theory was established, the defendant would be responsible for any nuisance existing at the time of the last monthly letting. Lazansky, P. J-, Hagarty, Johnston, Taylor and Close, JJ., concur.