
    Moe Rosenthal and Jack Rosenthal, Copartners, Trading as Rosenthal Bros., Appellants, v. Jacob Seville and Max Jonas, Copartners, Trading as Seville & Jonas, and Delish Co., Inc., Respondents.
    
    Supreme Court, Appellate Term, First Department,
    March 14,1928.
    Landlord and tenant — repairs — action for damages to tenant’s property by reason of leaking roof — owner reserved control and management of property to itself — judgment in favor of owner reversed, where it had notice of condition of roof.
    A judgment in favor of the owner of premises in an action for damages to tenant’s property by reason of a leaking roof must be reversed where the proof shows that said owner reserved to itself possession, control and management of the roof and that prior to the damage said owner was notified of the defects; the tenant’s lessors having no control over the roof, the verdict in their favor presents no error.
    Appeal by plaintiffs from judgments of the City Court, county of New York, in favor of defendants.
    
      Kurzman & Frank [I. Maurice Wormser of counsel], for the appellants.
    
      Kotzen Bros. [Milton M. Siegel of counsel], for the respondent Delish Co., Inc.
    
      Isidor Lazarus, for the respondent Seville & Jonas.
    
      
       Modifying 129 Misc. 315.
    
   Per Curiam.

As the uncontradicted evidence authorized the finding by the jury that the defendant owner reserved to itself and exercised possession, control and management of the roof, skylight, water pipes, leaders and gutters of the extension, and that prior to June 15, 1925, said owner was notified of defects in the roof which caused the damage to plaintiffs' property, and that plaintiffs were not chargeable with contributory negligence, it was error to set aside the verdict as against said defendant. The plaintiffs' lessors having no control over or management of the roof, the verdict in favor of said lessors presents no error.

Judgment in favor of the defendant Delish Co., Inc., reversed, with costs, and verdict of jury reinstated as against that defendant. Judgment in favor of defendant Seville & Jonas affirmed, with costs.

Present — Lydon, Levy and Crain, JJ.; Crain, J., dissents.  