Regenhardt v. Prudential Insurance Co. of America

258 A.D. 856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1939
• Status: Published

Opinion

Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs. Memorandum: Plaintiff’s husband, Carl Regenhardt, and one Meyers rented defendant’s premises by a lease dated October 11, 1938, for a period of seven months, to be used as a public skating rink. During the term of the lease, and on December 27, 1938, plaintiff was injured by the falling of a door which was a part of the leased premises. The lease provided that the lessees were to make all necessary repairs during the term of the lease. The falling of the door was not due to any defect existing at the time the lease was made and the lessees went into exclusive possession. Plaintiff’s husband, one of the lessees, and plaintiff in a companion action, so testified. Under these circumstances defendant is not liable to plaintiff. While it is true that the lessor of premises which, when leased, have defects which are or should have been known to lessor, and which are leased for the purpose of being used by the public, is liable to the public for injuries caused by such defects (Junkermann v. Tilyou Realty Co., 213 N. Y. 404), the liability does not exist when the premises were in good condition when leased.' This is true even though the lease provides that the lessor shall make necessary repairs (Cullings v. Goetz, 256 N. Y. 287.) In the instant case the duty of keeping the premises in repair was assumed by the lessees. All concur. (The judgment is for plaintiff in a negligence action. The order denies a motion for a new trial.) Present —■ Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.