McGowan v. Morgan

160 A.D. 588, 145 N.Y.S. 787, 1914 N.Y. App. Div. LEXIS 4790

Opinions

Hotchkiss, J.:

By this action it is sought to hold defendant as “ owner ” of a tenement house for injuries suffered on December 19, 1909, by plaintiff because of defendant’s alleged violation of section 76 of the Tenement House Law (Consol. Laws, chap. 61; Laws of 1Q09, chap. 99),

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* which reads as follows: “In every tenement house a proper light shall be kept burning by the owner in the public hallways,” etc. The complaint was dismissed because of plaintiff’s failure to prove that defendant was “owner” of the premises. The meaning of the word “ owner ” as used in this section is somewhat vague. Elsewhere, as in section 140,* the statute speaks of “ owner * * * lessee of the whole house or other person having control of a tenement house.” I think the term “owner” in section 76 was intended to describe the person who was in such possession or control as proprietor, of all or part of the premises, as to cast upon him the duty to light and care for the common hallways.

At the trial plaintiff proved the following facts: Some six months before the accident, in response to an advertisement, one John Dolan applied to defendant for the position of janitor for his wife, and having been sent to examine and make his choice among several buildings, he selected that in question, was engaged and thereupon paid defendant one month’s cash rent of his apartment, the remainder of his rent to be paid in services. On or near the main entrance there was a sign “apartments to rent ” and directing those interested to apply to defendant. After this action was commenced, when on the premises and conversing with Dolan about the accident to plaintiff and the “ lights being off,” defendant said: “ Well, if that is so, they got me on the gas.” Mrs. Dolan testified that while janitress she collected the rents from the other tenants and paid them over to one Demorest, who receipted for them in the name of defendant; that defendant had on several occasions visited the premises and instructed her concerning their care. There were received in evidence several receipts for rent bearing defendant’s signature or signed in his name and ■undisputed by him, on which receipts defendant’s name was printed with his occupation, “ ¡Notary Public, Insurance, Real Estate.”

I think this evidence was prima facie sufficient to show that defendant was “owner” of the premises within the meaning of section 76 above referred to. Ordinarily as to chattels possession or the exercise of proprietary rights is prima facie evidence of ownership.

The following are illustrations of this rule: Applying for a license to keep a dog. (Commonwealth v. Gorman, 16 Gray, 601.) Permitting a sign with defendant’s name to appear over a shop or on a wagon. (McCann v. Davison, 145 App. Div. 522; Stables v. Eley, 1 Carr. & Payne, 614.) Receiving insurance moneys. (Grier v. Sampson, 27 Penn. St. 183.)

I know of no sound distinction between real estate and chattels so far as the exercise of such rights being prima facie evidence of ownership is concerned. In Phillips on Evidence, in speaking of ej ectment by an heir at law under the title of “ Proof of seizin,” it is said: “ The seizin of the deceased is proved by showing his actual possession of the premises, or by proving his receipt of rent from the person in possession.” (3 Phillips Ev. [4th Am. ed., O. H. & E.’s notes] 595.) The above quotation is cited with approval by Savage, Ch. J., in Jackson v. Waltermire (5 Cow. 299, 301), an action of ejectment for dower; the head note says: “Actual possession of the husband, or his receipt of rent is prima facie evidence of seizin in an action for dower,” but the evidence in the case showed actual possession 'in the deceased as well as the receipt of rents. The same is true of the case of Jayne v. Price (5 Taunt. 326), cited in the notes to Phillips as authority for the author’s statement which I have quoted.

Although as authorities for the precise question here the cases above referred to may be subject to the criticism I have pointed out, still I think,the statement in Phillips’ text is good law.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

McLaughlin and Dowling, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.

Since amd. by Laws of 1911, chap. 388.— [Rep.

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Since amd. by Laws of 1913, chap. 598.—[Rep.