
    Congreve v. Morgan.
    An infant child of one of several tenants of a dwelling-house and premises who hired, each a distinct part thereof, was injured by the breaking of a stone covering a vault attached to the house, while he was standing upon the stone. It did not appear by the pleadings, whether this stone was within a public street, or wholly on the premises of the defendants, the owners and lessors. Held, that a cause of action is not established merely by proof, that the defendants were owners and landlords of the premises, and that while the plaintiff stood on this stone, it broke, and he fell into the vault beneath, and was injured. It is necessary to prove some fault or negligence of the defendants, which caused the casualty. If the defendants erected the building, or had it done by a contract calling for materials, or workmanship, which would leave the covering of the vault insecure, and if they knew this, or if by such inquiries as a discreet person would make under the circumstances, they would have ascertained this, they ' would be guilty of negligence in so building, or in making such a contract. In such a case, a person injured, by such a covering, if free from negligence himself, could recover.
    If it is sought to make the defendants liable on other grounds than those of negligence, in not constructing the cover of the vault properly, or in not keeping it in a proper condition; such as that the area is within a public street, or that a duty imposed by some municipal ordinance has been violated, those grounds should be stated in the complaint, so that issue can be taken upon them, and the defendants may come prepared to try those issues.
    (Before Dbek, Campbell and Boswokth, J. J.)
    April Term, 1855.
    This action came before tbe court on exceptions taken at tbe trial, and on questions of law arising on a special verdict, wbicb exceptions and questions were, at tbe trial, directed to be beard in tbe first instance, at tbe General Term.
    Tbe complaint states, tbat tbe plaintiff is an infant under tbe age of three years. Tbat tbe defendants in tbis action now are, and heretofore on tbe day of tbe occurring of tbe cause of action hereinafter set forth, were tbe landlords and owners in fee of a certain lot of land and dwelling-house, and appurtenances thereof, situated on tbe north-east corner of Sixth avenue and thirty-first street, in tbe city of New" York. That on tbe seyentb of July last past, (1853,) be, said plaintiff, was standing npon a certain flagstone, covering or outside pavement, witbin a foot or two feet of tbe wall of tbe main building of said premises, when, by reason of tbe insecurity of tbe supports of tbe said flagstone, covering or outside pavement, by reason of tbe insufficiency, rottenness, and inferiority of tbe materials of wbicb tbe said flagstone, covering or outside pavement was composed, for tbe want of tbe proper underneath barrier supports or fastenings of tbe same, and tbe utter carelessness and negligence of tbe defendants in permitting tbe flagstone, covering or outside pavement, to be and remain so insecure, for want of proper supports of so rotten, inferior, and insufficient material composed, be, tbe said plaintiff, on tbe said day herein last mentioned, was precipitated, thrown, cast, and caused to fall into an aperture, vault, bole, excavation or opening, beneath tbe said flagstone, covering or outside pavement, in consequence of wbicb precipitation or falling into tbe said opening, bole' or excavation, tbe right foot of tbe said plaintiff was crushed to pieces: in further consequence of which tbe said right foot of tbe plaintiff bad to be and was amputated, together with a portion of tbe lower part of bis right leg, between tbe knee and tbe ankle of tbe said limb, whereby tbe said plaintiff was enforced to endure great agony, suffering, and bodily torture, whereby be is crippled for tbe period of bis natural life, whereby tbe prospect qf bis maintenance and support for life, by any exertions of himself, is diminished and injured, and whereby bis earthly happiness, comforts, and existence, are materially damaged, injured, and prejudiced. Wherefore, be, said plaintiff, claims damages against tbe said defendants; in tbe sum of twenty-five thousand dollars, besides tbe costs of this action.
    (Tbe answer-admitted, that tbe defendants were tbe owners in fee, and landlords of tbe dwelling-house and premises described in .the complaint, and put in issue tbe other allegations of tbe complaint. Tbe answer set up various matters-of defence, as follows:
    - -And these defendants for a further and separate defence allege and aver, that tbe said building and premises, were rented and leased by them to James M. Congreve, tbe father of tbe plaintiff, and others, for tbe term of one year, from tbe first day of May, 1858, to tbe first day of May, 1854, and that tbe said James M. Congreve with others, entered into tbe possession thereof as tenants under such letting as aforesaid, and were in possession thereof at tbe time of tbe alleged injury to tbe plaintiff, and still remain in tbe possession thereof, and that tbe defendants were not, nor was either of them in tbe possession of tbe said premises at tbe time when tbe said alleged injury occurred. And these defendants for a farther and separate defence, allege and aver, that tbe said braiding and premises were rented and leased by them to James M. Congreve, tbe father of tbe plaintiff, with others, for tbe term of one year, from tbe first day of May, 1858, to tbe first day of May following, and that said James M. Congreve, with others, entered into tbe possession thereof as tenants under such letting as aforesaid, and were in possession thereof, at tbe time of tbe alleged injury to tbe plaintiff, and still remain in tbe possession thereof. These defendants further allege, that tbe said side-walk flag, or covering appurtenant to tbe said premises, at tbe time of tbe aforesaid demise, and of tbe entry of tbe said tenants thereupon, to wit: on tbe first day of May, 1858, was well and properly placed, and set with all sufficient and necessary supports, and securely fastened, and was of superior materials, and proper for tbe purposes for which it was intended to be used, and with reasonable wear and tear would have so remained until tbe first day of May, 1854. These defendants for a further and separate defence, upon information and belief, aver, that the alleged injury to tbe plaintiff, was caused by tbe negligence, carelessness, and wrongful acts of tbe lessees in possession of tbe said premises, at tbe time when tbe said alleged injury occurred. Wherefore these defendants pray that said complaint may be dismissed, with costs.
    Evidence was given tending to show, that tbe stone broke while tbe father and son were standing upon it, that both were injured, and tbe plaintiff very severely.
    Witnesses who were practical mechanics, were examined on behalf of tbe plaintiff, and expressed tbe opinion that this stone was an unsafe and unsuitable on?¡ for tbe use to which it was applied, and as many witnesses on behalf of tbe defendants, apparently equally competent, expressed a contrary opinion.
    Tbe evidence established, that tbe defendants bought tbe premises, after tbe building bad been erected, and before it was completed. After their purchase, and on tbe 15th of January, 1852, tbey made a contract witb competent and skilful mechanics, to complete the building, under tbe supervision of a competent architect, in a substantial manner, and of good materials in all particulars. The clause in the specifications, relating to the stone for covering the areas, was a subject of comment and criticism, and read thus:
    “ The curb and gutter to be repaired, and reset if found necessary, both on 31st street and Sixth avenue. The front side-walk of ditto, to be flagged with good, sound, tooled-joint, blue flagstones, worth eleven cents per foot.
    “ The flags to cover front and flank areas, to be three inches thick, for size, see drawings: all the above to have cut openings left for hole trees, and street-washer.”
    The contractors, by a sub-contract with, employed one Houghey, a flagger, to furnish the stone and dp the flagging, and cover the areas. Their contract with the defendants was read to him, and he was to furnish materials, and do the work, as their contract and specifications required.
    . Houghey was examined, and his testimony tended to show, that this area stone was not dressed, axed, or tooled; that he would have liked a stronger stone than this, for the place where it was laid; that he thought there ought to have been a stronger one, but he could not afford a better one for the price he was to get. There was no evidence tending to show, that the defendants or their architect, supposed the stone to be insufficient, or defective.
    The evidence did not show whether this area was within defendant’s lot, or within the line of the street. The side-walk had no fence or railing between the area and the curb-stone. The stone, alleged to be defective, was blue flagstone, about three inches thick, but not being dressed, was not of a uniform thickness. The premises were rented to different persons, from May, 1853, to May 1854; the plaintiff’s father being a lessee of a portion of them, and occupying, by himself and family, the portion so hired by him.
    When the testimony was concluded, • the defendants’ counsel moved that the complaint be dismissed, on the same grounds on which he had moved for a nonsuit, when the nlaintiff rested,
    
      I. This-action is brought by the plaintiff, an infant living with his father, who is in possession of the premises, corner of 31st street and Sixth avenue, in this city, as tenant of the defendants. He had the care and charge of the plaintiff. If the father has no right of action, the plaintiff has none. Their obligations and duties, as far as the defendants are concerned, are the same. The negligence of the father is the negligence of the plaintiff.
    H. There is no evidence in the case showing that the defendants covenanted, or agreed to repair or keep in repair, the premises in question; and they are not liable to third persons for injuries resulting from a want of repair of premises in the possession and occupancy of a tenant.
    HE. The tenant, who in this case is shown to be the plaintiff’s father, is bound to repair when there is no agreement or covenant on the part of the landlord to repair, and is liable to third persons for injuries resulting from a want of repair. As between landlord and tenant there is no implied covenant that the former shall repair- but the tenant is bound to keep the premises in repair, in the absence of any contract to the contrary.
    IV. The obligation to repair resting upon the plaintiff’s father, no action can lie by him against the defendants for an injury to himself, arising from his own neglect to do proper repairs.
    V. Even if there was a defective construction of premises in the occupancy of the plaintiff’s father, the defendants are not liable for injuries resulting therefrom, unless they had made an express covenant of warranty. No such warranty is proven or contended for in this case.
    VI. There is no evidence of negligence proven against the defendants, to submit to the jury.
    Also upon the ground, that it being shown, that the defendants contracted with careful and responsible men as builders, for the erection of said house, and if there was any negligence or omission it was that of the builders, and not of the defendants, and upon the doctrine of Blalce v. Ferris, (1 Seld. R. 48,) the defendants are not liable for the injury in question. The court overruled the motion, and the defendants by their counsel excepted.
    The Judge then charged the jury, and, in his charge, instructed them' as to the question of damages. The respective counsel for the parties agreed that the case did not present a claim for exemplary damages against tbe defendants; be instructed them .it was not a case which authorized a recovery of exemplary damages, and that the jury in estimating the same, were to arrive at the best conclusion they could, in estimating the actual damages which the plaintiff sustained, by reason of the injury.
    The Judge submitted to the jury the following questions specifically, to which he required them to write their answer.
    "Was the stone in question, which gave way, a suitable and safe stone, for the use to which it was applied, as used and applied ?
    Did the defendants know or have notice of any facts which should have induced a man of ordinary caution and intelligence to suppose or believe, that this stone was an unsafe and unsuitable stone for the use to jvhich it was applied, as used and applied?
    How much damages has the plaintiff sustained in consequence of the injury which he suffered from the giving way of the stone ?
    The jury having retired, returned into court, and to the first and second specific interrogatories answered “no,” and to the third interrogatory, “ two thousand dollars damages.”
    The Judge thereupon ordered the above finding of the jury to • be entered, subject to the opinion of the court at a General Term, on the questions of law reserved at the trial, and to be heard there in the first instance.
    The questions of law, arising upon the verdict, were heard in the first instance at the General Term.
    
      H. Morrison, for plaintiff.
    
      P. Y. Cutler, for defendants.
   By the Couet.

Boswoeth, J.

No facts are stated, as imposing any duty upon the defendants, beyond the allegations that they were landlords, and owners in fee of the lot, dwelling-house and appurtenances. The duty implied by the facts stated, is that expressed by the maxim; “ sieutere tuo ut alienum non Icedas.” In such a case, it is evident, that a cause of action would not be even •prima facie established, by proof that the defendants were landlords and owners in fee of the premises, and that while the plaintiff stood on tbis stone, it gave way, and he fell into an excavation under it, and was injured.

It would be necessary to go further, and prove some fault of the defendants, which produced the casualty. If there were any facts existing, which, under any statutory law, made it the defendants’ duty to maintain a covering over the excavation, which should be safe at all events, neither the facts, nor such a law have been stated in the complaint, or appear to have been established on the trial.

If the defendants’ liability depends upon the question whether their negligence was the cause of the injury complained of, we must hold that it was not, if the finding of the jury embraces all the facts necessary to be known to determine that question. If other facts, beside those specially found, must be known in order to arrive at a just conclusion, then, unfortunately for both parties, the cause must be again tried. If the building was erected, and all the materials furnished and works done, were furnished and done, in conformity with the contract, there was no negligence, under the finding of the jury, unless there was negligence in making such a contract.

We are unable to see that the question secondly submitted, involved in its decision the examination and determination of that question. If it could be seen that it did, and that the finding of the jury to it, determined that there was no negligence in making the contract, we do not perceive any grounds on which the defendants could be made liable on such a state of facts, as the case, in that view of it, would present.

If the defendants made a contract calling for materials, or workmanship, which would leave the covering over the excavation unsafe and insecure, and if they knew these would leave it insecure, or if such inquiries as a discreet person, under the circumstances, would ordinarily make, would have given them notice, or just grounds to believe, it would be unsafe and insecure, they would be guilty of negligence in making such a contract. In such a case, if the injury was caused by such an unsafe and insecure structure, without any negligence on the part of the plaintiff, contributing to produce the casualty that caused the injury, the defendants in our judgment would be liable.

In the case of The Rochester White Lead Company v. The City of Rochester, (3d Coms. 463,) tbe defendants were beld liable for tbe damages caused by a culvert tbey bad constructed, on tbe ground of negbgence in constructing it. It bad not sufficient capacity to discharge tbe water it was designed to draw off, and was unskilfully constructed, and these defects were found to have been tbe result of employing and following tbe advice of an incompetent and non-professional engineer.

Speaking of tbe test of tbe defendants’ liability, Taylor, J., who debvered the opinion of tbe court, said, “ In the construction of a work like this, tbey were bound to exercise that care and prudence which a discreet and cautious individual would or ought to use, if tbe whole loss or risk were to be bis alone.”

Such a rule makes tbe fact of liability depend upon tbe fact of negligence.

In the case of The Mayor, &c., of Lyme Regis v. Hentley, (1 Bing. N. C. 222,) Park, J., in delivering the opinion of tbe Judges, after stating tbe case and tbe pleadings, observes, that “ in order to make this declaration good, it must appear, First, That tbe corporation are under a legal obligation to repair tbe place in question. Secondly, That such obligation is matter of so general a public concern, that an indictment would lie against tbe corporation for non-repair. Thirdly, That tbe place in question was out of repair; and, Lastly, that tbe plaintiff has sustained some peculiar damage, beyond tbe rest of tbe king’s subjects, by such want of repair.”

In tbe case of The Mayor, &c., of New York v. Furze, tbe corporation was beld bable for tbe consequences of not repairing sewers, which it was their duty to repair. But tbe corporation bad notice that repairing was necessary, and its agents, who were directed to see to tbe repairs, wholly neglected to make them. (3d Hill, 612.) Tbe question of actual negligence was submitted to tbe jury as one of fact.

Vaughan v. Menlore, (3d Bing. N. C. 468,) was a case of actual negligence. Tbe Judges agreed, that “ tbe care taken by a prudent man, has always been tbe rule laid down; and as to tbe supposed difficulty of applying it, a jury has always been able to say, whether, taking that as their guide, there has been negligence on tbe occasion in question.”

Livingston v. Adams, (8 Cowen, 175,) seems to declare tbe rule, tbat where one builds a dam upon a proper model, and the worK is well and substantially done, be is not bable to an action, though it break away, in consequence of which his neighbor’s dam and mill, below, are destroyed. That negligence must be shown in order to make him bable.

If a plaintiff claims to recover damages against a defendant, incurred merely by reason of an insufficient structure erected by the latter, he must allege, and, if the allegations are controverted, must prove facts which show that the duty has been imposed upon the defendant, of so erecting and maintaining it, that no injury shall result, either from original defects, or from its being out of repair. Unless enough is alleged and proved to create a duty to be performed, at all events, and at the peril of the party, so as to make him practicaby an insurer of the sufficiency of the original erection, and of its continuing safety, then it is impossible to maintain an action, except upon facts estabhshing an injury, resulting from the negligence of the defendants, without any concurring negbgence on the part of the plaintiff.

Many of the general principles applicable to such a case, are fully discussed and clearly stated, in The Mayor, &c., of Albany v. Cunliff, (2 Coms. 165.)

The counsel for the plaintiff on the argument before us, assumed, that this stone was within the boundary lines of the Sixth avenue, and was not on the plaintiff’s own lot.

If the fact of its being wholly or in part within the pubbc street, is deemed important, and if it is really out of the line of the defendants’ lot, and in the avenue, and if there are any municipal ordinances, that create any duty to be performed by the defendants, by reason of those facts, different from that arising on the facts stated in the complaint, the plaintiff, to avail himself of them, must state those facts and ordinances in his complaint, and if they are put in issue, must prove them.

We do not feel justified from any thing appearing in the case before us, in assuming that this flagstone was a part of the pubbc street, or side-walk, and was wholly, or in part, without the limits of the defendants’ lot.

Dygert v. Schenck, (23 Wend. 446,) only decides, that where a man who owns a farm, through which a pubbc highway runs, digs a ditch across the road, and constructs a bridge over the ditch, he must keep- it perfectly safe. If he does not, and if a person is injured by reason of its getting out of repair, the party-erecting the bridge is liable.- If he-interfered-with the public highway, he should make and keep the road as good-as it was before he dug his ditch. That is a rule sufficiently favorable for the protection of the public, assuming, the road to have been entirely safe-when,the defendant interfered with it.

In this .case, the whole gravamen of the complaint is the negligence of the defendants. , ;

■ No duty is alleged except that which arises from their being the landlords and owners, in fee, of the property described in the complaint.

The only question submitted to the jury, relating to the fact .of the negligence of the defendants, has been found in their favor. The plaintiff cannot have a judgment on such a verdict.

We think, on the case as now presented, the question might have, been properly submitted, whether they were guilty of negligence in -making the contract, under which the building and premises were completed. If there are facts which warrant the position, and the plaintiff deems it important to insist that the defendants were subject to any duty which the complaint, as now framed, does not disclose, he should take the necessary steps to so amend the complaint, as to present all the material facts out of which such duty arises, so that the defendants may take issue-on them, and be prepared to controvert them, on another trial.

The verdict must be set -aside, and a new trial ordered, with costs to abide the event.  