Kelly v. Washburn

178 A.D. 664, 165 N.Y.S. 891, 1917 N.Y. App. Div. LEXIS 6555

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1917
• Status: Published

Opinion

Putnam, J.:

This contract of March fourth passed title to the building on signing and delivery of that instrument. There was a legal severance of the building from the land, and the house-wreckers were at once vested with title to the building. (Melton v. Fullerton-Weaver Realty Co., 214 N. Y. 571.)

The liability having been left to the jury on the theory of negligence, appellants contend that, therefore, it was necessary to show that at the time of the accident the premises were under their control, with a continuing legal duty on them to use care.

Although prior to the accident defendants had sold the building to be demolished and removed, such severance of the title to that building did not release the landowner from any existing liability for a dilapidated structure so unsafe as to threaten the wayfarer on the public street. We are not called on to pass on the landowner’s liability where the danger and menace from the building begins after its legal severance from the land. Even the deed of .one defendant’s undivided interest in the land did not exonerate such owner from liability, if the subsequent accident happened because of his want of care before delivery of the deed. Negligence of this degree becomes similar to the cause of action for nuisance, because its effect may be a direct danger to the public. (Junkermann v. Tilyou Realty Co., 213 N. Y. 404, 408.)

There being no error in the rulings or the charge, I advise that the judgment and order should be affirmed, with costs.

Present—Jenks, P. J., Stapleton, Mills and Rich, JJ.

Judgment and order unanimously affirmed, with costs.