Donner v. Ogilvie, 49 Hun, 229.

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the ground that the complaint does not state sufficient facts to 15 constitute a cause of action, and have appealed from an interlocutory judgment at Special Term overruling their demurrer. The first impression gained from reading over the complaint is that the pleader intended to allege a letting of the entire premises by the defendants Ogilvie and Ingersoll to the defendants, Hahn and Schumacher, whereby the former parted entirely with all control over the property, and that the letting to the plaintiff's father was by the defendants Hahn and Schumacher alone. But the learned counsel for the defendants argues that the allegation in the seventh paragraph, that the premises were in the possession of the "defendants" when the rooms were let to the plaintiff's father, means that they were in possession of all the defendants, and hence that all are liable for the condition of the platform which resulted in the plaintiff's injuries. It might be said in answer to this that the complaint does not really allege a letting by any of the defendants, for it does not necessarily follow from the averment that the defendants were in possession of the premises when certain rooms were rented, that they themselves were the parties with whom the tenant made his contract. We 17 will not dispose of the case, however, upon any such refinements, but will adopt the view most favorable to the plaintiff, which is that the complaint alleges a letting to the father by all the defendants. Assuming that the father thus stands in the direct relation of tenant to all the defendants, let us inquire whether they can be held liable for injuries to his child by reason of the unsafe, unguarded and dangerous condition of the platform in front of his rooms at the time of the letting.

It is not charged that the defendants knew, or had reason to 18 know, the platform to be dangerous for any use for which they let it, and failed to disclose its condition, or that they had agreed to repair it, or make it safe, and omitted to do so. Hence they cannot be deemed liable, under the rule which was applied in Carson v. Godley (26 Penn St., 111), where the defendant let a storehouse with the knowledge that it was unfit for the uses to which the lessees manifestly intended to put it, and omitted to insert any word of caution or restraint in the lease. Nor can the defendants be regarded as negligent under the authority of

Donner v. Ogilvie, 49 Hun, 229.

19 Davenport v. Ruckman (37 N. Y., 568, 574), where it appeared that there was an express agreement by the lessor to put the premises in repair, which agreement had not been kept. Neither do the averments of the complaint suffice to make out such a condition of the platform as to amount to a nuisance for the effects of which the defendants might continue responsible after the letting. A structure may be unguarded and unsafe, and dangerous for the use of a child, and yet not be a nuisance.

In Bold v. O'Brien (12 Daly, 160) the landlord of a tenement house was held to be liable for an injury to his tenant arising out 20 of a defect in a portion of the premises outside that occupied by the plaintiff, and over which the landlord retained control; and it is sought to bring this case within the principle of that and other similar decisions. But here it is not alleged that any of the defendants retained control over the platform, and indeed there is a distinct intimation to the contrary in the averment that the structure was immediately in front of the rooms rented to the plaintiff's father, and was intended for use in connection therewith. This would rather imply that the platform was let 21 to him with the apartments.

22

There appears to be nothing, then, to take the case at bar out of the ordinary rule that no warranty is implied on the part of the lessor of a dwelling that it is safe and convenient. (Jaffe v. Harteau, 56 N. Y., 398.) The law which should control the disposition of this demurrer is stated with such perfect clearness in Edwards v. N. Y. & Harlem R. R. Co. (98 N. Y., 245, 249), that we need only quote a few sentences from that case: “If a landlord lets premises and agrees to keep them in repair, and he fails to do so, in consequence of which anyone lawfully upon the premises suffers injury, he is responsible for his own negligence to the party injured. If he demises premises, knowing that they are dangerous and unfit for the use for which they were hired, and fails to disclose their condition, he is guilty of negligence which will in many cases impose responsibility upon him. If he creates a nuisance upon his premises and then demises them, he remains liable for the consequences of the nuisance as the creator thereof, and his tenant is also liable for the continuance of the same nuisance. But where the landlord has created no nuisance, and is

City of Buffalo v. Holloway, 7 N. Y., 493.

guilty of no wilful wrong or fraud or culpable negligence, no 23 case can be found imposing any liability upon him for any injury suffered by any person occupying or going upon the premises during the term of the demise."

None of the authorities cited by the respondent are in conflict with this statement of the law, and if they were they would have to yield to it as the latest utterance of the court of last resort on the subject.

The interlocutory judgment must be reversed, and the appellants must have judgment on their demurrer, with costs, with 24 leave to the plaintiff to amend on the usual terms.

VAN BRUNT, P. J., and MACOMBER, J., concurred.

Judgment reversed and judgment ordered for appellants on demurrer, with costs, with leave to plaintiff to amend on usual

terms.

CITY OF BUFFALO v. HOLLOWAY.

New York Court of Appeals, 1852.

[Reported in 7 N. Y., 493.]

1. An allegation that under a contract, the terms or substance of which are not stated, "it became and was the duty of defendant to" do a specified act is insufficient on demurrer.

2. The facts creating the duty must be alleged.

Action by city of Buffalo against a contractor who had constructed a sewer for the city, to recover from him a sum which the city had been compelled to pay to one Tripp, who fell into the sewer excavation while the work was going on, in consequence of the omission to put up guards.

The complaint did not state the provisions of the contract under which defendant did the work. Its allegations sufficiently appear in the opinion.

1

Defendant demurred for insufficiency of facts to constitute a 2 cause of action.

The Supreme Court at Special Term overruled the demurrer.

3

City of Buffalo v. Holloway, 7 N. Y., 493.

The General Term reversed the judgment and sustained the demurrer.

The Court of Appeals affirmed this latter decision.

JEWETT, J. [after stating facts, and the general principle that the contractor is not liable to the city in such case unless he stipu lated to guard the excavation]:

The city of Buffalo was bound to exercise its right in constructing the sewer in a careful and prudent manner, so as to avoid injury resulting to others from it; and if it were prudent 4 and necessary to erect, maintain and keep lights, guards and barriers about, and in the vicinity of the place excavated during the progress of the work, in order to protect and prevent persons lawfully traveling and passing along the street from unavoidably falling into the pit or hole and thereby sustaining injury, it was its duty to do so, and consequently it is liable for injuries occasioned by the want of such proper precautionary measures. As between the city of Buffalo and the defendant, the obligation of the latter extended no farther than to perform his part of the contract made for the construction of the sewer according to its terms, with reasonable skill, and consequently, he is only liable to the city to compensate it for such injuries as it sustained for want of the exercise of such skill in the performance of his contract in that manner.

5

The complaint states that "for the purpose of constructing the sewer, the defendant excavated the earth in or near the middle of Elk street, near the east end of the bridge on the canal slip, in such manner as to make a deep pit or hole near the east end of the bridge, about twelve feet in length along the middle of the 6 street, of the width of about four feet and of the depth of about fifteen feet, and that it then became and it was the duty of the defendant while the pit or hole remained open, in the use of due care, to have erected and maintained lights, guards and barriers about and in the vicinity of the pit or hole, to prevent and protect persons lawfully traveling and passing in, along and upon Elk street, from and against unavoidably falling therein; that while the pit or hole was open, the defendant wrongfully, carelessly, negligently and improperly left it unguarded, and while

City of Buffalo v. Holloway, 7 N. Y., 493.

so left, etc., Mr. Tripp, while lawfully passing along and upon Elk street, unavoidably fell into it, by means whereof he was greatly hurt," etc., and afterwards sued the city of Buffalo for such injuries and recovered against it a certain sum, etc., therefor, which the said city had paid, etc.

7

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It will be observed that it is not stated or alleged in the complaint that it was not necessary for the defendant, in order to construct the sewer, in pursuance of the terms of his contract to excavate the pit or hole in every respect as it was done, or that there was any lack of skill manifested in executing the contract in that respect. The complaint, instead of stating facts and circumstances to show that it was the duty of the defendant to erect and keep up lights, guards and barriers while the pit remained open, assumes that such was his duty, and proceeds at once to allege a breach of this duty. The difficulty is, the want of any statement of facts from which such duty arises. For an allegation of the duty is of no avail, unless from the rest of the complaint the facts necessary to raise the duty can be collected. If the excavation to construct the sewer in the street in question was such as to make it necessary and proper to erect lights, 9 guards and barriers in the vicinity to render the passing of the street safe while open, it unquestionably was the duty of the city of Buffalo to have caused such precautionary measures to be taken. The city might have contracted with the defendant to take such measures; in that event the duty as between him and the city would have devolved upon him, and he would have been liable for all the consequences resulting to it for any neglect on his part in observing his stipulations in that respect; or the city may have judged the measures unnecessary, and therefore omitted to provide for them in its contract with the defendant, or if otherwise, the city might have chosen to contract for the doing of that service with some other person. In either case the defendant would owe no such duty to the city, whatever liability he might have incurred to others, who suffered by the digging of the pit and leaving it open, without such measures having been taken to guard against the danger which there was in passing in the street (Seymour v. Maddox, 5 Eng. L. & Eq., 265; 1 Chitty R., 370, edit. 1812 by Day).

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