
    John Evers, by Guardian, Resp’t, v. Jonas Weil et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Landlord and tenant—Negligence—Notice.
    Notice of a defective and dangerous condition of a stairway given to a person who is accustomed to collect rents for the-landlord, a"nd who is frequently about the premises, is at least constructive notice to the landlord.
    Same—Damages.
    Plaintiff, when four years old, was injured by falling on a defective stairway. He had previously had a rupture which had disappeared, but after the accident an incomplete rupture appeared on the other side. The medical testimony showed that it would not be permanent, as it could be cured by use of a truss, or- by an operation. Held, that a verdict for $5,000 was excessive.
    8. Same—Evidence.
    A memorandum made by a witness as to plaintiff’s condition at the time he was taken to the hospital, madé for the mere purpose of showing where to send the patient, is properly excluded where there is no evidence . as to its correctness.
    
      •4. Same—Charge.
    It is not error for the court to charge that a reappearance of a hernia was of no consequence on the simple question of liability, whether there was a predisposition to it or not; such predisposition has no effect except upon the question of damages.
    Appeal from a judgment recovered on the verdict of a jury, .and from an order denying a motion for a new trial
    
      Horwitz & Hershfield, for app’lts; Jacob Fromme, for resp’t
   Daniels, J.

The respondent, who was born on the 20th of December, 1884, was injured by a fall on a stairway in a tenement building occupied by his parents and others on the 5th of ■October, 1889. The family were tenants of this building from ■.the month of October, 1885, and another family occupied the ■same floor as tenants. The stairs upon which the accident took place were used in common by the occupants of the building, and . previous to the occurrence in controversy they were covered with oilcloth and rubber. And. at the place where the plaintiff encountered his fall the /oilcloth and rubber are testified to have been worn through or broken, and the nails used to secure it are .■stated to have- been sticking up. And the evidence tended to prove the fact to be that the fall of the plaintiff was caused by ■■this condition of the covering of the stairs. The witnesses who were examined on behalf of the plaintiff, and whose attention had been directed to this condition of the stair covering, testified that "this had been the condition of the stairs for several months prior to the time when this accident occurred It was also stated by the witnesses that a Mr. Klein was so far in the supervision of the property as that he acted for the defendant in the collection of rents. And evidence was given to the effect that his attention had been •directed to this condition of the stairs, and that he had promised that it should be repaired. The plaintiff’s mother testified further that she stated to Mr. Klein, when he was there for the rent in September, that she herself had fallen down the stairs and hurt her leg, and if he did not fix the stairs some other person might break his neck there, and he responded that it would be done :soon. The objection was taken that notice to Mr. Klein, who in this manner represented the defendants in the building, was not (sufficient to charge them, even if the evidence was correctly given, with carelessness in permitting the stairs to remain in this condition. But from the fact that he appeared to be authorized to ■collect the rents from the tenants, and was in and about the building frequently, it could be very well inferred that he was the defendants’ representative in the oversight and care of the building. And notice to him, if he was so in charge of the building, while in the discharge of these duties, was constructive notice at least "to the defendants of the condition of the stairway.

On their part evidence was also given to the effect that the stair ■covering had not been worn- or broken through in this manner, but that it was in a safe and secure condition at the time when "this occurrence took place. But this evidence was not so controlling as to require the fact to be withheld from the consideration, of the jury. It was for them, as the evidence on both sides had been given, to determine who was right as to the condition of this stairway, and the superintending authority of Mr. Klein as the-representative of the defendants. And to find the verdict which they did, they must have been satisfied with the truthfulness of the case as it was presented on behalf of the plaintiff, and that, this stairs had been in this condition for five or six months, or-near that time, as the plaintiff’s witnesses described it was; prior to the occurrence of this accident The case, therefore, was not. in a condition in which it could be withheld from the consideration of the jury.

It appeared by the evidence that this child, in what is called as-a fit of crying in the early period of his infancy, sustained a rupture on the left side, and that his father before his birth had. encountered a similar calamity. And the effect of the medical: testimony was that this would increase the probability of the child inheriting that weakness. But this rupture was shown to have-been cured prior to the accident by the application of a truss, and that at the time of the accident he was not suffering from any difficulty of that description, but that after the accident he was-found to have been ruptured on the right side. That is, that there was a projection indicating that the intestine had passed» through what the doctors described a ring, and that a truss was applied to this rupture after the accident, which the plaintiff continued to wear to the time of the trial. But from the evidence of the medical witnesses it is clear that this was not considered by them to be a permanent disability, but one which would be cured by the application of the truss, or if that was not successful then» by a surgical operation, which it was considered by Doctor Lesser should not be performed until the plaintiff was a few years older.. But by its performance the conclusion of- the witness evidently was that this rupture was capable of being healed, and the physician who was sworn on behalf of the defendants was equally as. definite in his conclusions.

• On this subject Doctor Gribney testified that The ring itself, or the canal, or the ring through which the hernia comes, was the-same size as I made out as on the opposite side, but the abdominal walls themselves were packed somewhat above this point and allowed this mass to protrude just a little. It is what we call an incomplete hernia The condition in which I found the boy was. such as sufficient to warrant me in saying that it would improve in time. I should think he would get well. An incomplete hernia is less serious than a complete hernia Such a hernia as this boy suffers from is of frequent occurrence in children of his» age, and they get cured of it” And the plaintiff does not appear to have sustained any other serious injury than that which was-described by the witnesses as a rupture. And with a person of his age, a few years, according to the uncontradicted evidence of' the witnesses, would probably suffice for healing this rupture. ¡No very great amount of pain or suffering is shown to have followed the occurrence of the accident, but by their verdict the-. jury awarded the plaintiff the sum of $5,000. And upon that, as one of the grounds for the motion, an application was made to •set aside this verdict From the description and consequences of ►the inj ury this amount was entirely disproportioned to the suffering and disability imposed upon the plaintiff by this fall. A ver-dict of $5,000 was entirely unwarranted by this proof. And where that appears to be the result, there it is not only the practice but the duty of the court to set it aside, or to provide for so far reducing it as to render it conformable to the evidence. A reference to the cases mainly bearing upon this subject is con■tained in the opinion of the presiding judge in Coppins v. N. Y. C. & H. R. R. R. Co., 48 Hun, 292; 17 St. Rep., 916. And the conclusion which was there adopted was followed in Lockwood v. Twenty-third Street R. Co., 28 St. Rep., 16; Hickinbottom v. Delaware, etc., Co., 15 id., 11; Buck v. Webb, 58 Hun, 185; 33 St. Rep., 824.

An exception was taken to the exclusion of a memorandum contained in a book, and- made on the. 27th of January, 1885, by -the witness Eagan, as to the condition of the plaintiff when he was taken to the hospital for the ruptured and crippled. The witness stated that he had no remembrance of the case whatever, .-and did not remember when the plaintiff and his mother visited the hospital, but that this memorandum was made by him in his •own hand-writing and was °the original entry, and the object of making it was to know where to send the patient. The court excluded the memorandum, and to that the defendant’s counsel excepted. But, inasmuch as there was no testimony given by the witness as to the correctness of the memorandum, the court on that ground was justified in excluding it McCormick v. Penn. Cent. R. R. Co., 49 N. Y., 303, 315.

It cannot in any view be. held that the court erred in this conclusión, for it does not appear by the case what the memorandum was, or that it would.have been of the slightest importance to the ■defendants if the court had permitted it to be read. The prob.abilities are that it would not have been of any service whatever .-•as evidence, for the reason that the condition of this boy on each -of the occasions when he was ruptured do not seem to have been the subject of any serious controversy upon the trial.

An exception was also taken, and has been urged upon the attention of the court as a ground for a new trial, to., the direction in the charge that the reappearance of a hernia in the boy was of mo consequence in the case on the simple question of liability, whether there was a predisposition to it or not. In this direction •the court was clearly right, for tlie predisposition inherited by the hoy to this result could have no effect whatever upon the simple -question of liability. The only effect which could be attributed 4o it and considered in the case was as to the amount of damages the plaintiff should recover if the action could be maintained. And as to that, the direction of the court was wholly inapplicable. It was directed solely to the question of liability. And upon that question this predisposition, if it existed, could have no possihie effect

Indeed there were no exceptions in the case that can be of any possible service to the defendants, for it was entirely proper to receive the evidence of the mother of the plaintiff as to the conversation between herself and Klein in which she described her own. fall as a consequence of the unsafe condition of the stairs.. But. as the verdict of the jury was out of .all proper proportion to the compensation the plaintiff was entitled to recover for the injury received by him, it should be set aside. And the judgment and order for that reason should be reversed, and a new trial directed,, on payment by the defendants of the costs and disbursements of the trial within twenty days after the service of the order to be-entered on the decision, with costs to the defendants to abide the-event, unless within the same time the plaintiff shall stipulate to-reduce the verdict to the sum of $1,500. And in case of the service of such a stipulation, then the judgment and the order to> that extent should be affirmed.

Yah Bruht, P. J., concurs.

Barrett, J.

I concur, but I think Mr. Justice Daniels unnecessarily minimizes the testimony as to Klein’s agency. It is-true that when the conversation between the plaintiff’s mother and Klein was admitted the proof of Klein’s agency was slight. But subsequently Klein himself was called as witness and he testified, as follows: “ I frequently went into that house, 421, in 1889, to-collect the rent; sometimes to look for repairing and reporting it. to the owners. It was my duty to look - after repairs and report, to the owners. Whenever I found anything to report, I reported it to the owners.”

This certainly cured any difficulty with regard to the testimony previously given.

I agree, however, that the damages were excessive and that, there should be a new trial unless the plaintiff chooses to stipulate-as indicated in Mr. Justice Daniels' opinion.  