
    John H. Taylor, Respondent, v. Henry G. Campbell, Appellant.
    Second Department,
    January 17, 1908.
    Landlord and tenant — injury to chattels by fall of picture — when tenant not liable.
    A tenant for a year holding under a lease requiring him to pay for damages tó chattels on the premises, “the ordinary reasonable use and wear thereof excepted,” is not- liable for damages to crockery, etc., caused by the fall of a heavy picture which had been hung by the landlord, in the absence óf evidence that an act of the tenant or his family caused the picture to fall.
    Appeal by the defendant, Henry. Gr. Campbell, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, rendered on tlié 20th day of May, 1907.
    
      Joseph G. Deane, for the appellant.
    
      Pierre M. Brown, for the respondent.
   Hooker, J.:

The plaintiff as landlord entered into an agreement of lease with the defendant as tenant, under which the defendant, occupied the. plaintiff's furnished summer home for five months ánd twenty days from the 10th day "of May, 1906,- to the 31st day of October of the same year. One of the covenants in the lease was as follows : “And the party of the second part further expressly covenants and agrees to keep the furniture enumerated- in said schedule or inventory, and" which is contained in the said house, in good order and repair, at his own proper cost and expénse, and also to pay for, replace, or make good, any and all damages, breakage, or loss, to said "furniture, crockery, glass and other wares (excepting loss or damage "by fire) and not to permit the same-or any article thereof to be taken-out.of said house at any time, and* to surrender and deliver up said furniture at the expiration of said term,- the ordvncury reasonable use and wear thereof excepted.” This action is for damages, because of breakage and loss to furniture, crockery, glass and other wares, which were demised with the premises. The plaintiff has had judgment and the defendant appeals.

The plaintiff proved the condition of the goods in question at the time possession was delivered to defendant and showed that when he- re-entered they were damaged ;■ a clock was broken - and some glassware and crockery smashed, besides other unusual damages to some- of the -furniture, and rested his case. He made 'out a cau.se ■of action, because furniture, crockery and glass do not get in.-that condition with “ ordinary reasonable use and wear,” and the burden was cast upon the defendant to show that -the condition was caused ■ by fire or as a result of ordinary reasonable use and wear, the only two exceptions to the defendant’s absolute covenant to make good any.arid all damages, breakage or loss. .

The defendant’s wife and a servant in her employ testified that ..most' of the damage was caused by falling pictures, eight or ten of which dropped down during this term of five and one-half months. These were doubtless interested witnesses, and it is probable that the. trial court would have had the right' to disbelieve their testimony ;arid render judgment for the plaintiff for the full amount of his claim on the theory that the presumption raised by the plaintiff’s , evidence had not been successfully met. ,

•: However, one of the plaintiff’s servants, Allen by name, was also called as a witness, and testified to the falling of a heavy, picture over the mantel and produced a part of the broken wire which he detached therefrom at the time of the fall; it was the fall of this picture which caused the major part of the damages. It seems to be admitted, as far as this 'appeal is concerned, that this picture did actually fall. There is nothing in the evidence to show that the fall was due to the positive act of any member of the defendant’s household and the conclusion is that it just fell. The question ■is Whether this fall was an incident to the ordinary reasonable use and wear of the premises and furnishings, or not.

In general, the ordinary reasonable use and wear has relation to the depreciation in condition of building or property which it undergoes during the occupation of the tenant, when the tenant, in the case of a residence at least, does nothing in connection with the use more than to come and- go and perform the acts usually incident to creating and maintaining in the ordinary way conditions for living; or in other words, what, of depreciation occurs while the tenant does by his affirmative act nothing inconsistent with the usual use, or does not omit to do acts which it is usual for the tenant to.perform, is due to ordinarily reasonable use and wear.

The only conclusion possible from the-evidence .is that the-heavy picture in question fell while the room, in which it hung, was being used in the ordinary reasonable way, for it fell of its own weight without the interference of any outside agency ; nothing thedefendant or members of his family had done or were doing caused it to fall; and nothing they had omitted to do was the cause, for it is entirely .unreasonable to suppose that it is the. ordinary thing-for a summer tenant when he takes a furnished house for a period of five or six months to examine and test the sufficiency of the wire -which supports the pictures hanging on the walls. In fine, the picture fell while the defendant was in the “reasonable ordinary use” (the words of the lease) of the premises and their furnishings. ■

Our conclusion is that so far as the furnishings were concerned, which suffered.by reason of the fall of the heavy picture, they wére injured in the course of ordinary reasonable use and wear and for the damage to them the defendant was not liable.

Under our view of the case a new trial should be had ;. and the judgment is, therefore, reversed and a new trial-ordered, costs to abide the event.

Woodward, Jenks, G-aynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. -  