
    Ahern v. Steele et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 18, 1888.)
    1. Negligence—Dangerous Premises—Public Pier—Landlord and Tenant.
    Defendants were the owners of the public pier, through a hole in which plaintiff’s intestate fell, and was drowned. The pier was occupied by a tenant under a lease which reserved to the owners the right to enter and make repairs. Sold, that the pier is to be treated as a public street; and, when it becomes out of repair, it is a public nuisance, which it is the owners’ duty to abate if they have the right to enter, even though, as between themselves and the tenant, they were not bound to make repairs, and defendants were therefore liable.
    3. Same—Dangerous Premises—Acquisition oe Title—Landlord and Tenant.
    The owners of the pier, through a hole in which plaintiff’s intestate fell, and was drowned, are liable in damages, though they inherited their title after the making of the lease, under which the tenant was in possession at the time of the accident ; the pier having been out of repairs at the time of the making of the lease, and continued so to the time of the accident.
    3. Same—Dangerous Premises—Evidence.
    Evidence of the condition of a pier two days after plaintiff’s intestate fell through a hole in it is admissible, in the absence of anything to show a change, as is also evidence of the measurement of the hole taken six months after the accident, in connection with testimony that the hole measured was the one through which the deceased fell.
    4. Same—Dangerous Premise's—Contributory Negligence.
    Plaintiff’s intestate, a boy about six years old, had gone upon a public pier to meet his father, about half past 5 o’clock on an October afternoon; and, while going home with him, he fell through a hole in the pier, and was drowned, held that, as matter of law, it was not contributory negligence to permit him to be on the pier at that time.
    5. New Trial—When Granted—Excessive Verdict.
    Though a verdict of §4,500 damages for the death of a boy about six years of age seems to be excessive, the general term will not disturb the verdict on that account.
    Appeal from circuit court, Sew York county; Abraham R. La wrench, Justice.
    Action by James Ahern, as administrator of his infant son James Ahem, deceased, against Rosalie M. Steele, Henrietta Hutton, Edwin 0. Sturges, and Fanny McCarthy, executors of Thomas McCarthy, deceased, owners, and Frank Phelan, tenant, of the pier, through a hole in which the plaintiffs intestate fell, and was drowned. Phelan occupied under a lease from the trustee of the mother of the defendants Steele and Hutton, and Thomas McCarthy. The mother died after the making of the lease, and the title to the fee devolved upon them. The accident occurred about half past 5 o’clock in the afternoon of October 8th; the boy having come onto the pier to meet his father, who was returning from an excursion. The boy was about six years of age. Phelan did not appear in the action. The complaint having been dismissed on the first trial of the action, the judgment was reversed on appeal, and the second trial resulted in a verdict of $4,500 for plaintiff. From the judgment entered on this verdict, and the order denying their motion for a new trial, the defendants appeal.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      
      John B. Whiting, for appellants. Edward B. McCarthy, for respondent.
   Van Brunt, P. J.

One of the main questions involved upon this appeal arises from the fact that the title to the fee of this pier devolved upon the defendants subsequent to leasing of the pier. That the pier was out of repair at the time of the lease, and continued so up to the time of the accident, has been found by the jury upon sufficient evidence. All owners of property, it has been repeatedly held, who lease the same when out of repair, are liable to strangers for accidents arising from such want of repairs. The defendants in this case, by taking these premises by inheritance, took them cum onere, and cannot relieve themselves by the claim that the title devolved subsequent to the lease, and that, therefore, they were not required to repair. King v. Pedly, 1 Adol. & E. 822. The condition of the pier before the leasing, and notice thereof to their ancestor, devolved upon them, together with the title, and they cannot bold the title, and divest themselves of the obligations which had attached to the previous owner. These obligations, so to speak, ran with the land, and every owner is liable during the time he holds the title. Suppose this case was in no way complicated by the question of lease, and it was necessary to show notice of a defect before recovery could be had, it is plain that notice to an ancestor or testator would be also notice to the heir or devisee. The heir or devisee would take the land burdened with the notice, and the want of notice to him would not absolve from liability. In the case at bar, the defendants, therefore, took the land subject to the liability that, because of the defective condition of the pier at the time of the lease, the landlord was liable for any accidents arising from such defective condition; and, they having become landlords, the liability attached to them. But there ' is another consideration which also seems to point to the existence of a liability upon the part of the defendants. The wharf was open to the public; it is treated as a public street; and, when it becomes out of repair, it is a public nuisance. The defendants had the right to enter and make repairs; and although, as between themselves and their tenants,.they were not bound to do so, yet, as between themselves and the public, they were bound to abate the nuisance if they had any right of entry. The only ground upon which a landlord has been exempted from liability in these cases has been because he had no right of entry. The premises were not his for the time being, and therefore he was neglecting no duty. In the case at bar the right to enter and repair was expressly reserved in the lease. The landlord owed a duty to the public. The public had the right to pass over this pier, and there was no impediment preventing the landlord from fulfilling his obligations in this respect. His not doing so was therefore negligence.

The exceptions to the admission of evidence do not seem to have been well taken. The condition of the pier within two days after the accident was pertinent, as there is no pretense of any change. The evidence of the measurement of the hole six months after the accident was admissible, in connection with the evidence of the plaintiff, who swore that the hole measured was the one through which the deceased fell.

The exceptions to the charge are equally unavailing. It certainly was not, as matter of law, contributory negligence to have permitted this boy to be upon the pier, to which he had come to meet his father. After having joined him, the accident happened. Hor was it error to refuse the request that the plaintiff could not recover unless the jury believed that the hole through which the boy fell was the result of the defective condition of the pier at the time the lease was made. The whole purport of the charge was to this effect; and although, perhaps, this point was not emphasized, as it might have been, the rule laid down in the charge, from the cases cited, plainly recognized the principle contended for. In any event, the right to enter and repair existing in this case, the duty of repair existed in respect to the public, notwithstanding the lease; and it was not necessary that the jury should find that the particular defect antedated the lease.

The damages appear to be excessive, as it does not seem that there can be any pecuniary damage resulting from the death of so young a child, however great a shock to the feeling its loss' may entail; but, as recoveries have been sustained, based upon the death of much younger children, we see no reason ■for interference with the verdict upon this account. The judgment should be affirmed, with costs.

Brady and Daniels, JJ., concur.  