Kennedy v. Fay

31 Misc. 776, 65 N.Y.S. 202

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1900
• Status: Published

Opinion

Per Curiam.

The action is to recover damages for personal injuries claimed to have been received by the plaintiff from the fall of plaster in premises where she resided with her husband, who was in possession under a lease from the defendant.

When the plaintiff rested, the defendant moved for a dlamlpsal of the complaint, which motion was granted, and the plaintiff, by her appeal, challenges the correctness of the ruling. The record fails to disclose any proof whatever that the defendant agreed to repair the demised premises. Hence, he was under no legal obligation to repair the same or keep them in a habitable condition. Schick v. Fleischhauer, 26 App. Div. 210. Even if he had made such an agreement and failed to make the repairs, the defendant would not be liable for the injuries which the plaintiff says she sustained in consequence of the fall of the ceiling. Wynne v. Haight, 27 App. Div. 7, 9. Moreover, as the plaintiff wholly failed to show that the defendant knew or had reason to know that the ceiling was dangerous or unsafe at the time of the letting of the demised premises to her husband, and failed to disclose that fact, or that the defendant at any time had any knowledge, either actual or constructive, as to the condition of the ceiling, the ruling of the justice should be upheld. Franz v. Mulligan, 18 Misc. Rep. 411.

It follows from these views that the judgment must be affirmed, with costs.

Present: Beekman, P. J., Giegebioh and O’Gobman, JJ.

Judgment affirmed, with costs,