Gelb v. Silverman

Appellate Division of the Supreme Court of New York

Gelb v. Silverman

150 N.Y.S. 485

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

DecidedDecember 17, 1914

StatusPublished

This text of 150 N.Y.S. 485 (Gelb v. Silverman) 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

Gelb v. Silverman, 150 N.Y.S. 485 (N.Y. Ct. App. 1914).

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Opinion

WHITAKER, J.

The action was brought by plaintiff, an infant of the age of 11 years, through his guardian ad litem, to recover damages for personal injuries sustained by him on July 21, 1913, in the premises 102-110 Attorney street, Manhattan, New York City, against all of several defendants, some of whom were partners in a business, as tenants, also the Attvington Realty Company, as lessee, and Aaron Cohn, the owner of the premises. The said tenants defaulted. The Realty Company and Cohn defended the action. The only party defendant to appeal from the judgment is the appellant, Aaron Cohn, the owner of the premises.

The plaintiff testified that on July 21, 1913, at about 1:30 o’clock p. m., he was walking up the stairs leading from the ground floor to the first flight up of the premises known as 102-110 Attorney street, going to a school which was held on the floor, one flight up from the street; that when walking up the stairs, and having his hand on the banister, a large bundle of goods fell from the third floor and struck him on his right forearm, breaking the arm. The staircase wound around an opening, and through this opening goods were hoisted to the various floors above. Ropes hung down from a drum at the top, through the opening. This rigging was operated by hand.

The appellant was not in control of the premises at the time the accident occurred. This is admitted by the plaintiff in his complaint. Appellant’s liability is therefore dependent upon the question whether, at the time he surrendered the entire possession of the premises to the lessee, a nuisance existed. Appellant’s witness testified that the lease was executed in 1904, and that the hoisting machine which constituted the nuisance complained of was installed by witness’ order [486]*486in 1905. In ordering the hoisting machine, the witness was acting as agent for the lessee, not on behalf of the appellant. This testimony is uncontradicted. As no nuisance existed when entire possession of the building was surrendered to the lessee, and as under the conditions of the lease the owner was under no obligation to make repairs, the appellant cannot be held liable. Uggla v. Brokaw, 117 App. Div. 586, 102 N. Y. Supp. 857; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R A. 449, 12 Am. St. Rep. 778. The judgment against the defendant Aaron Cohn should be reversed.

Judgment against defendant Aaron Cohn reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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WHITAKER, J.

The action was brought by plaintiff, an infant of the age of 11 years, through his guardian ad litem, to recover damages for personal injuries sustained by him on July 21, 1913, in the premises 102-110 Attorney street, Manhattan, New York City, against all of several defendants, some of whom were partners in a business, as tenants, also the Attvington Realty Company, as lessee, and Aaron Cohn, the owner of the premises. The said tenants defaulted. The Realty Company and Cohn defended the action. The only party defendant to appeal from the judgment is the appellant, Aaron Cohn, the owner of the premises.

The plaintiff testified that on July 21, 1913, at about 1:30 o’clock p. m., he was walking up the stairs leading from the ground floor to the first flight up of the premises known as 102-110 Attorney street, going to a school which was held on the floor, one flight up from the street; that when walking up the stairs, and having his hand on the banister, a large bundle of goods fell from the third floor and struck him on his right forearm, breaking the arm. The staircase wound around an opening, and through this opening goods were hoisted to the various floors above. Ropes hung down from a drum at the top, through the opening. This rigging was operated by hand.

The appellant was not in control of the premises at the time the accident occurred. This is admitted by the plaintiff in his complaint. Appellant’s liability is therefore dependent upon the question whether, at the time he surrendered the entire possession of the premises to the lessee, a nuisance existed. Appellant’s witness testified that the lease was executed in 1904, and that the hoisting machine which constituted the nuisance complained of was installed by witness’ order [486]*486in 1905. In ordering the hoisting machine, the witness was acting as agent for the lessee, not on behalf of the appellant. This testimony is uncontradicted. As no nuisance existed when entire possession of the building was surrendered to the lessee, and as under the conditions of the lease the owner was under no obligation to make repairs, the appellant cannot be held liable. Uggla v. Brokaw, 117 App. Div. 586, 102 N. Y. Supp. 857; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193, 5 L. R A. 449, 12 Am. St. Rep. 778. The judgment against the defendant Aaron Cohn should be reversed.

Judgment against defendant Aaron Cohn reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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150 N.Y.S. 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gelb-v-silverman-nyappdiv-1914.

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