
    Chaskel Rosenberg, Appellant, v. Harris Zeitchik and James C. Wexted, Respondents.
    (Supreme Court, Appellate Term,
    December, 1906.)
    Landlord and tenant — Rights, duties and liabilities in regard to premises.— Repairs, insurance and improvements — Mode of making repairs — Negligence.
    Where a landlord whose duty it was to make repairs employed a plumber for' that purpose, through- whose negligence the infant child of the tenant was burned with molten lead, the landlord is liable; and it was not negligence on the part of the parents of the infant plaintiff to permit him to pass, from the street where he had been playing to the rooms where he lived, through the only entrance, unattended.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, rendered in favor cf the defendants.
    Charles Frankel, for appellant.
    Rollins & Rollins, for respondent, Zeitchik.
   Fitzgerald, J.

Zeitchik, a landlord, employed Wexted, a plumber, to repair certain defective plumbing work in a tenement-house. The first floor was occupied by the father of the infant plaintiff, the front as a barber shop and the rear as living apartments for his family. To reach these living rooms from the street it was necessary to pass through the shop. A portable charcoal furnace with fire burning and a dipper of molten lead on top was left by the plumber, unattended by any one, on the floor of the barber shop. The infant plaintiff, a "boy four years' of age, was passing from the street, where he had been playing, through the barber' shop to the inner rooms, when a hook on the side of the furnace hooked in the pocket of his pants and it turned over, burning him about the stomach. Upon some evidence having been offered tending to show that Wexted (the plumber) was an independent contractor, the complaint, as to the owner, was dismissed. This was error. The rule relied on to uphold it applies as to injuries to third persons, but where the relation of landlord and tenant exists it is different. Sulzbacker v. Dickie, 6 Daly, 469. Under the circumstances of this case it was the duty of the landlord to make the repairs and the fact that he made a contract with some one to do the work does not relieve him from liability for negligence to his tenant. It cannot well be claimed that the leaving unguarded for several minutes in the barber shop of a furnace with a hook extending therefrom, containing a charcoal fire with a dipper of molten lead on top, was not a negligent act. The only remaining question is that of contributory negligence. The four year old" injured boy was non sui jurisj he was assuredly lawfully in the place passing through his father’s shop, the only entrance from the street upon which he had been playing into the rooms in which he lived, without 'any evidence of his loitering on the way or interfering in any manner with the furnace. Both parents were in the place and the mother shouted to him, when the hook caught, too late to prevent the injury. Unless it bo held that his parents should have forbidden him from passing through the sole entrance from the street to his home, or should have accompanied him every step of the way, it cannot, upon the testimony, well be claimed that they were negligent. To require them to do either of these things would be to exact from them a greater amount of care and caution than is reasonably to be expected from ordinarily prudent persons situated as they were.

G-ildeeseeeve and Davis, JJ., concur.

Judgment reversed and new trial ordered, witfi cost? to appellant to abide event,  