Brooks v. Schlernitzauer

113 N.Y.S. 484

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 16, 1908
• Status: Published

Opinion

HENDRICK, J.

The plaintiffs brought this action to recover damages to personal property by reason of water dripping through a roof which the defendant was by the terms of his lease bound to keep in ■repair. On Saturday, Januaiy 25, 1908, there was a heavy fall of snow. On the following Monday it was discovered that water had leaked through the roof of certain premises of which the defendant was the lessee and the plaintiffs were his tenants. The plaintiffs were nonsuited at the close of their case. It is a well-known rule of law that, where it is the landlord’s duty to make repairs, in order, to put him in default, it is necessary to show actual notice of the defect, or that it has existed for such a length of time prior to the injury as to charge him with constructive notice. Nothing of the kind appears in the record in this case. One witness only testifies to any defective condition of the roof. He swears that at the time of the leakage the roof was rusty, had holes in it, and that the leader and gutter did not meet, and we,re clogged up with dirt and rubbish. As to how long this situation had existed, there is no evidence whatever, and as to the condition of the roof prior to this storm there is no evidence. The judgment being one of nonsuit merely, the plaintiffs are not precluded from bringing another action in which possibly facts sufficient to charge the defendant may be adduced.

Judgment affirmed, with costs. All concur.