Gelof v. Morgenroth

58 Misc. 557, 109 N.Y.S. 880

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1908
• Status: Published

Opinion

Per Curiam.

The plaintiff brought his action to, recover damages for the loss of services of his infant daughter, by reason of injuries alleged to have been caused by the negligence of the defendants. The plaintiff claims that, while his daughter was standing in front of a show window in a saloon occupied by one Thomas J. Brennan, the defendants’ lessee, her foot caught in an iron grating beneath the said window, which grating was in a dangerous and defective condition. Brennan had leased the store in question, agreeing to take good care of the premises and pay for the plate glass insurance in the store front, to deliver up the premises to the defendants in good condition, and to comply with the city regulations applicable thereto for the abatement of nuisances or other grievances in, upon or connected with said premises. The landlords made no covenant to repair, while Brennan agreed to make all repairs in said store. The area covered by the defective grating was for the purpose of admitting light and air into the portion of the cellar under the store which, it is conceded, was exclusively under Brennan’s control. Brennan had also erected a bootblack stand and a news stand, and the former was placed at times over the grating in question. It would seem that this area and grating were appurtenant to the store and cellar, and under Brennan’s control. Curran v. Flammer, 49 App. Div. 293, appears to be decisive in appellants’ favor.

Present: Gildersleeve, Seabttry and Daytow, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide event.