
    Fannie Hirtenstein, Respondent, v. John Farrell, Impleaded, etc., Appellant.
    (Supreme Court, Appellate Term,
    April, 1901.)
    Negligence — Tenant injured by the fall of the carrying wheel of a dumb-waiter down its shaft.
    Where proof is made, in an action brought by the tenant of an apartment-house to recover damages of the landlord for injuries sustained by the fall, down the shaft of a dumb-waiter, of a part of its iron carrying wheel, that the dumb-waiter had been repeatedly out
    of order; that the janitress, the agent of the landlord, had had her attention called to this fact, and especially to the machinery and to the carrying wheel; that the latter was examined shortly after the accident and was found to be worn and rusted at the point where it broke; a refusal to dismiss the complaint of the tenant is justifiable as the case is one for the jury.
    Hirtenstein v. Farrell, 33 Misc. Rep. 807, affirmed.
    Appeal from a judgment of the City Court of the city of Hew York, entered on an order of the General Term of that court affirming a judgment in favor of the plaintiff, and also affirming an order of the Trial Term denying the defendant’s motion for a new' trial.
    McOrea, Somerville & Taylor (George H. Taylor, Jr., of counsel), for appellant.
    M. Cukor, for respondent.
   Per Curiam.

This action is brought to recover damages for personal injuries to the plaintiff, ’ a tenant in the defendant’s apartment-house, while operating a dumb-waiter supplied for the use and convenience of the tenants.

The plaintiff, with the assistance of her little daughter, who stood at the base of the shaft, was lowering the dumb-waiter when it fell violently to the bottom of the shaft. A piece of the iron carrying wheel fell down the shaft, striking the plaintiff on the head, causing the injury complained of. After the accident the wheel was examined, found to be broken and, at the place of the break, worn and rusty.” It was contended at the trial by the plaintiff that the breaking of the wheel caused the elevator to fall, while the defendant claimed that the little child let the dumb-waiter drop, which caused the counterweight to violently strike the wheel and caused the break. All such questions have been resolved in favor of plaintiff by the verdict of the jury and its affirmance by the General Term. We will not consider questions involving the weight of evidence.

The sole question before us arises from the exception taken to the refusal to dismiss the complaint upon the ground that there was no defect shown to have existed at the time of the accident or at any time prior thereto to the carrying wheel of the dumbwaiter, a piece of which struck the plaintiff, and that no notice of any such defect was shown to have been given to the landlord directly or constructively. The duty of landlords to tenants in regard to dumb-waiters has been defined by the Appellate Division in Sellers v. Dempsey, 26 App. Div. 22, to be “ the exercise of ordinary care and prudence * * * which included the duty of maintaining the property in such reasonable repair and good condition as a person of ordinary care and prudence would exercise with reference to the uses of the property and the circumstances under which it was enjoyed and used by the tenants. * * * If the appliance fell into bad condition, the duty to repair or make' it safe arose when notice of its condition was given or might be imputed to the defendant.”

It being in evidence in this case that the dumb-waiter had been repeatedly out of order and that the defendant’s agent, the janitress, had had her attention called to this, and especially to the machinery and carrying wheel which broke, and' that when the carrying wheel was examined shortly after the accident it was found worn and rusted at the place of the break, we cannot say as matter of law that error was committed in refusing to dismiss. It seems a case eminently requiring submission to the jury.

Present — Bischoff, P. J., Leventritt and Clarke, JJ.

Judgment affirmed, with costs.  