
    Morris Gelof, Appellant, v. Jacob Morgenroth and Julius Morgenroth, Respondents.
    First Department,
    January 8, 1909.
    Landlord and tenant — negligence — injury by defective grating covering opening in sidewalk — liability as between landlord and tenant.
    The odiliir of a tenement house rented to several different persons who retains the l'ifyht to enter and make repairs is bound to keep a grating over an opening íífhicli extends into the public highway in repair, and is liable for injuries received by a pedestrian who stepped into a hole in the grating, where the • defect existed for over six months, even though he had leased part of the first floor and the cellar to a tenant who agreed to keep them in repair.
    As between landlord and tenant, where the latter has covenanted to makerepairSj he only is liable to persons using the demised premises on his invitation. But a different rule applies where a failure to make repairs results in an injury to a pedestrian on the public streets..
    Appeal by the plaintiff, Morris Gelof, from an order of the Appellate Term of the Supreme Court, bearing date the 10th day of April, 1908, and entered in the office of the clerk of the county of Hew York, reversing a judgment of the City Court of the city of Hew York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 28tli day of October, 1907, upon the verdict of a jury and directing a new trial.
    
      I. Henry Harris, for the appellant.
    
      Carl Schurz Petrasch, for the respondents.
   Ingraham, J.:

This action was brought to recover damages sustained by the plaintiff’s daughter, an infant under the age of fourteen years, by falling through a grating in front of certain premises on the corner of' One Hundred and Fifth street and Madison avenue in the city of Hew York, owned by the defendants Morgenroth. The tenant of the premises testified that the bars of the grating outside of the store ran towards the curb about three feet from ■ the house line. One of the bars of this grating was out so that there was a hole between tbe remaining bars of about three and one-half inches, and that had continued for about two we^ks prior to the accident. He was occupying the premises under a lease from the defendants Morgen r ó th for a term of five years, commencing May 1, 1900. On June 25, 1904, the plaintiff’s daughter, who was fourteen years of age, was walking down Madison avenue and stepped up to the window in the store, when her foot went through the hole in the grating, caused by the absence of one of the' bars of the grating. There was further evidence that the grating had been in this condition for over six months .before the accident. The tenant leased the store and part of the basement only. The rest of the building was used as a tenement house, occupied by eight or ten families. Under the building there was a cellar running from the front to the rear of the building. The cellar did not extend out under the sidewalk, but the grating was connected with it to light and ventilate it. The part of this cellar under the Madison avenue front was partitioned off from the rear of the cellar. The front portion, and under this grating, was occupied by the tenants of the store, and rear portion of the cellar was used by the other tenants in the house. When the defendants purchased the premises the grating was in the same place that it was at the time of the accident. ISTo alterations or repairs had ever been made to the grating. There were two show windows to the store which extend over the grating twelve and one-half inches, and the grating extended between two and one-half and three feet from the building iiito the street. There' Ayas no railing or protection around the grating, but it was open as part of the sidewalk. Under the lease the landlord had the right to enter upon the premises or any part thereof for the purpose of making such repairs and alterations as may be necessary for the safety and preservation of the premises. The tenant agreed to make all repairs in the store. The question was submitted by the court to the jury, who found a verdict for the plaintiff for $1,500. The Appellate Term reversed the judgment on the ground/that as the store of the cellar to which this grating was appurtenant was under the control of the tenant, Brennan, that the defendants, the owners of the premises, were not liable in tlie absence of evidence that the grating was in an unsafe condition at the time the lease was made. (58 Misc. Rep. 557.)

The Appellate Term in rendering .its decisión relied upon the case of Curran v. Flammer (49 App. Div. 293). In that case it appears that the first indication of danger to the grating which was in front of the entrance to the store was a few days prior to the accident, when the tenant of the store noticed that the grating did not rest firmly in its place. That on the day of the accident and just prior to its occurrence he rolled several barrels of produce over the grating into the store. Immediately after he discovered that one of the iron bars in the grating had fallen and was lying at the bottom of the basement. He immediately started to get a plank to place over the grating, but before he succeeded in doing so the accident happened. It further appeared that the defendant, the owner of the building, had no knowledge or notice of any kind that the grating was loose or out of repair, or that the iron bar referred to had been displaced. I do not think that that case applies, as in this case there was evidence that the grating had been out of repair for- at least six months, and if there was any duty upon the defendants as owners of the building to repair this grating, it is clear that it was a question for the jury to determine whether or not they "were negligent in the performance of that duty. It is true that as between the landlord and the tenant or as between a person using the demised premises upon the invitation of the tenant, as the landlord was under no obligation to repair, the obligation having been assumed by the tenant, he only would be liable. But as between a person lawfully using the street a different rule applies, which was stated in the case of Trustees of Canandaigua v. Foster (156 N. Y. 354). It was there held that it was the duty of the owner of premises abutting on the highway as long as he owned the premises to use reasonable diligence to keep a grating in front of the premises and a portion of the street in repair so that it would be as safe as any other part of the sidewalk ; that it was built for his accommodation and for the benefit of his property-, and the law placed upon him the obligation of using due care to keep it in a suitable and safe condition for the public to walk over as a part of the sidewalk; that its proper construction .in the first instance was not enough to relieve him from liability; that the duty of inspection and repair continued while he owned and was in exclusive possession of the premises. The crucial distinction between this case and the Curran Case (supra) is that there was no evidence that the grating was out of repair for more than a very few days before the accident, and the condition which caused the accident was caused by the tenant’s use of his approach to the store immediately preceding the accident. It is clear that as the landlord had no notice of the unsafe condition of the grating and had no opportunity to repair it,' he was not negligent in the performance of the duty that was imposed upon him to keep tliegrating in a proper condition. In this case the structure was a part of the sidewalk, and was maintained in the sidewalk for the beneiit of the defendant’s premises. It is true that he had leased the store and cellar to a tenant who "was under obligation to keep it in repair, but that did not relieve the owner of the building, who occupied the greater part of it for his own purposes, of the correlative duty of preventing the sidewalk from becoming dangerous to those using the, street. It is undoubtedly true that the landlord would not be responsible for the negligence of the tenant, but where it appears that there was a duty upon the landlord to protect the portion of his premises which extended into the street, a failure to perform that duty imposed a liability on him in favor of one who had no relation to the tenant hut who was using the street. It is not claimed that any error was committed on the trial other than that before discussed, and the order granting a new trial should, therefore, be reversed, with costs, and the judgment of the City Court affirmed.

Patterson, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with costs, and judgment of City Court affirmed. Settle order on notice.  