Ross v. Pizer

132 A.D. 696, 117 N.Y.S. 404, 1909 N.Y. App. Div. LEXIS 1578

Opinion

Clarke, J.:

The complaint alleges that the defendants were the executors of ' the estate of Jacob Pizer and had control of a tenement house; that plaintiff was a tenant and occupant of an apartment on the third floor thereof; that the said building and premises were negligently and carelessly maintained by defendants, inasmuch as they have failed to keep the ceiling in proper repair as said defendant had agreed; that by reason o.f said promises plaintiff continued to live in said' premises, and while in such possession and because of said promises and representations, which defendant failed to perform, and because of such false and fraudulent representation, plaintiff-continued to reside in said apartment, and was by reason! thereof seriously injured by reason of said falling ceiling, which did strike said plaintiff, did sustain considerable injury and damage in consequence thereof.

Defendants moved for judgment upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and from the order denying said motion they appeal.

This complaint contains allegations appropriate to three causes of action — breach of contract, negligence and deceit. The facts alleged do not sufficiently set forth a complete cause of action upon any theory. The motion for judgment should, therefore, have been granted.

As the plaintiff may he able to sufficiently allege a good cause of action, the order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave, however, to the plaintiff to serve an amended complaint within ten days after the service of the order to - be entered hereon, upon payment of the costs of appeal and the costs of the action. If sncli amended complaint be served and costs paid, the motion for judgment will be denied. Entry of judgment is stayed for ten days after service of this order.

Ingraham, McLaughlin, Houghton, and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to. amend on terms stated in ©pinion. Settle order on notice.