Levin v. Habicht

Appellate Terms of the Supreme Court of New York

Levin v. Habicht

45 Misc. 381, 90 N.Y.S. 349

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 15, 1904

StatusPublished

Cited by5 cases

This text of 45 Misc. 381 (Levin v. Habicht) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levin v. Habicht, 45 Misc. 381, 90 N.Y.S. 349 (N.Y. Ct. App. 1904).

Pincite

Opinion

Freedman, P. J.

The plaintiff occupied a store on the ground floor of 369 Lenox avenue. The upper part of the building was apartments, the one directly over the plaintiff’s store being occupied as a residence by the defendant, his wife and servant.

The premises were formerly owned by one Bauman, who leased the store to the plaintiff for five years from April 2, 1901. On May 3, 1902, Bauman conveyed the premises- to the defendant. This action was brought to recover damages for injuries to plaintiff’s property and stock in trade by water dripping down through the ceiling walls from the rooms of the defendant.

The defendant offered no testimony at the trial, and at the close of plaintiff’s case, moved for a dismissal of the complaint, which motion was taken under consideration by the court, who subsequently gave a judgment in favor of the defendant. An examination of the record satisfies us that the testimony offered on the part of the plaintiff, and which for the purposes of determining the motion made by the defendant must be taken as true, sets forth a cause of action against the defendant.

The proof was to the effect that the defendant’s washtubs and pipes situated immediately over the plaintiff’s goods were leaky, and were upon one or more occasions allowed to overflow by the carelessness of the servant, and the neglect of the defendant, the water percolating through the ceiling and down the side walls upon plaintiff’s goods> and damaging them. The damages shown were somewhat indefinite and uncertain in amount, but some injury and consequent damage and the value of the goods destroyed were made clear.

The respondent places much stress upon the following, clause in the lease, as being a perfect defense to plaintiff’s cause of action, viz: “ It is expressly agreed and understood by and between the parties to this agreement that the [383]*383landlord shall not he liable for any damage or injury by water which may be sustained by the said tenant or other persons, or for any other damage or injury from the carelessness, negligence or improper conduct on the part of any other tenant.”

Somewhat similar clauses have frequently been construed by the courts, and have invariably been held to afford the landlord no protection from his own negligence or wrongful acts. Randolph v. Feist, 23 Misc. Rep. 650; Worthington v. Parker, 11 Daly, 545.

Judgment reversed. New trial ordered, with costs to appellant to abide the event.

Bischoff and Fitzgerald, JJ., concur.

Judgment reversed. New trial ordered, with costs to appellant to abide event.

Free access — add to your briefcase to read the full text and ask questions with AI

Freedman, P. J.

The plaintiff occupied a store on the ground floor of 369 Lenox avenue. The upper part of the building was apartments, the one directly over the plaintiff’s store being occupied as a residence by the defendant, his wife and servant.

The premises were formerly owned by one Bauman, who leased the store to the plaintiff for five years from April 2, 1901. On May 3, 1902, Bauman conveyed the premises- to the defendant. This action was brought to recover damages for injuries to plaintiff’s property and stock in trade by water dripping down through the ceiling walls from the rooms of the defendant.

The defendant offered no testimony at the trial, and at the close of plaintiff’s case, moved for a dismissal of the complaint, which motion was taken under consideration by the court, who subsequently gave a judgment in favor of the defendant. An examination of the record satisfies us that the testimony offered on the part of the plaintiff, and which for the purposes of determining the motion made by the defendant must be taken as true, sets forth a cause of action against the defendant.

The proof was to the effect that the defendant’s washtubs and pipes situated immediately over the plaintiff’s goods were leaky, and were upon one or more occasions allowed to overflow by the carelessness of the servant, and the neglect of the defendant, the water percolating through the ceiling and down the side walls upon plaintiff’s goods> and damaging them. The damages shown were somewhat indefinite and uncertain in amount, but some injury and consequent damage and the value of the goods destroyed were made clear.

The respondent places much stress upon the following, clause in the lease, as being a perfect defense to plaintiff’s cause of action, viz: “ It is expressly agreed and understood by and between the parties to this agreement that the [383]*383landlord shall not he liable for any damage or injury by water which may be sustained by the said tenant or other persons, or for any other damage or injury from the carelessness, negligence or improper conduct on the part of any other tenant.”

Somewhat similar clauses have frequently been construed by the courts, and have invariably been held to afford the landlord no protection from his own negligence or wrongful acts. Randolph v. Feist, 23 Misc. Rep. 650; Worthington v. Parker, 11 Daly, 545.

Judgment reversed. New trial ordered, with costs to appellant to abide the event.

Bischoff and Fitzgerald, JJ., concur.

Judgment reversed. New trial ordered, with costs to appellant to abide event.

Cite This Page — Counsel Stack

Bluebook (online)

45 Misc. 381, 90 N.Y.S. 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levin-v-habicht-nyappterm-1904.

Opinion

Related

Cite This Page — Counsel Stack