
    The Oceanic Steam Navigation Co., Limited, Pl’ff, v. The Compania Transatlantica Espanola, Def't.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    Negligence—Liability of tenant.
    Plaintiff leased a -pier to defendant, which occupied the same, except for a few days when it was wed by another company with defendant’s consent. While the other company was occupying it a door, which two nights before was all right, fell upon and injured one C., who recovered against plaintiff for the injury. In an action for reimbursement, Held, that the mere fact that the other company was there with defendant's consent did not render the latter liable for such injury and that the complaint was properly dismissed.
    Exceptions ordered to be heard in the first instance at general term.
    The plaintiff and appellant in this case had leased a pier in this city to defendant, respondent. During the occupancy of the pier by defendant an accident happened to one John Cleary, who recovered a judgment therefor against the plaintiff. Plaintiff paid the judgment and then brought an action against this defendant for the amount so paid by it, alleging that the accident was caused by the negligence of the present defendant. Upon the trial the complaint was dismissed, and the court directed that the plaintiff's exceptions be heard in the first instance at the general term.
    
      Wheels?', Qortis & Godkin, for pl’ff; Stear?is & Curtis, for def’t.
   Freedman, J.

If it be assumed that, as the plaintiff contends, the door which fell on Cleary was sufficiently secure at the time that the defendant obtained from the plaintiff possession of the pier, and that the judgment recovered by Cleary in the United States circuit court against the plaintiff is no adjudication to the contrary, and if it be further assumed that the plaintiff, having been compelled to pay the said judgment, can call upon the defendant for indemnity in case Cleary’s injuries were the result of defendant’s negligence, it would be unreasonable, under the circumstances of this case, and especially in view of the testimony of Michael Hannon, a witness called by the plaintiff, and. who testified that two nights before the accident the said door was all right, to infer that the defendant during the short period of its possession negligently allowed the said door to become out of repair, and consequently the liability of the defendant to respond to the plaintiff would have to be found in a negligent use made by the defendant of said door.

But the evidence given at the trial shows that at the time of Oleary’s injuries the defendant was not using the door or pier in question, and that a Mobile steamship company was, and for some days had been, m the possession and use of the pier. The mere fact that the latter company was there with the consent of the defendant is not sufficient to impose upon the defendant the liability sought to be fastened upon it in this action.

This conclusion having been reached upon the aspect of the case most favorable to the plaintiff, it is unnecessary to consider the other questions in the case. The defendant was entitled to a dismissal of the complaint upon plaintiff’s proof, and the specific reason assigned for the dismissal at the close of the evidence on both sides is immaterial.

Plaintiff’s exceptions should be overruled and judgment should be ordered for the defendant dismissing the. complaint, with costs.

O’G-oeman, J., concurs.  