
    FANNIE SCHACHNE, Respondent v. SAMUEL BARNETT, Appellant.
    
      Negligence—Inability of owner of tenement house for damages caused by the falling of a stone upon plaintiff that had rested upon the fin escape, for some time previous to its fall, to the knowledge of defendant.
    
    The plaintiff was lawfully walking upon Ridge street, a public highway in the city of New York, and when passing the tenement house, known as No. 91, Ridge street and owned by defendant, a large stone or marble slab which had been placed and had remained for some time upon the uppermost fire escape on the front of the building, fell and striking her upon the head severely injured her. It was admitted by the pleadings that at the time in question, and for some time prior thereto, the defendant was the owner and had possession and control of the said premises and the fire escapes attached thereto, and all the appurtenances thereunto belonging. The immediate cause of the fall of this stone was left in uncertainty. It lay upon the fire escape in front of the sixth story of the building and the two middle windows of the top floor. The right window belonged to apartments which had been occupied by a tenant named Seiler, and the left window to apartments,, then occupied by a tenant named Natowiich. The stone lay between these windows and projected somewhat over the opening in the bottom of the fire escape. When Seiler moved into these apartment's-he found the stone in the position described and it remained there during his occupation and was there when he left about eight days before the accident. That the defendant rented the Seiler apartments after the accident, and during the time they were vacant, had been locked and in the possession and control of defendant, who had actual notice of the presence of the stone on the fire escape, but neglected to remove it. The defendant had a housekeeper on the premises to keep them in order and in general charge of the same who had seen and known the stone to have been there for a year and a half in the same position. There was no evidence that the tenant Nato witch had anything to do with placing the stone on the fire escape or maintaining it there.
    
      Held, that, upon these facts appearing, the trial judge properly refused to dismiss the complaint or to direct a verdict for-the defendant, and it was competent for the jury to find that the presence of the large stone or slab, projecting over the opening in the fire escape in the manner it did, was a standing menace to the safety of the passers by on the street, of which the defendant had sufficient notice and was bound to remove, and failing so to do, was liable for the damages and injury to plaintiff. The issues were submitted to the jury under a charge which fully and fairly guarded all the rights of the defendant, and were determined in favor of plaintiff, and the record discloses no tenable exception, and no sufficient reason appears to disturb the verdict.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided, May 5, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s 'motion upon the minutes for a new trial. • ■
    The facts sufficiently appear in the head note and opinion.
    
      Aaron Levy, attorney, and Christopher Fine of counsel, for appellant.
    
      Adolph Cohen, for respondent.
   By the Court.—Freedman, J.

The plaintiff was lawfully walking along Ridge street, a public street in the city of New York, and passing the tenement house known as No. 91 Ridge street and owned by the defendant, when a large stone or marble slab which had been placed and had remained for some time upon the uppermost fire escape on the front of the building, fell down and struck her upon the head and severely injured her. The action was brought to recover damages for the injuries thus sustained.

The complaint alleged, and the answer by not denying admitted, that at the time in question and for some time prior thereto, the defendant was the owner and had possession and control of the said premises known as No. 91 Ridge street, with the fire escapes attached thereto and all the appurtenances thereunto belonging.

Notwithstanding this admission upon the record the defendant now contends that the complaint should have been dismissed at the trial, because it was shown that he was not an actual occupant of the said building or any part thereof, and because, not having been said occupant, he cannot be held liable for any misuse of the premises by any of his tenants. This contention is not well founded in view of the state of the evidence, even if the defendant could be permitted to deny the admission that he was in control. True, there was no evidence that the fire escapes were out of repair, or that the stone which fell was part of the building or fire escape, or that the defendant put it upon the fire escape from which it fell, or that he authorized anybody to put it there. So it is also conceded that the premises consisted of a six-story building, with properly constructed fire escapes in front thereof from the sixth to the second floor, and that some 26 families lived upon the premises. There was an .opening in the bottom of each fire escape except the lowest, and through said openings a ladder ran in front of the building from the sixth to the second floor. The top or uppermost fire escape was the one on which the stone lay. That fire escape was in front of the two middle windows of the top floor, the right window belonging to apartments which had been occupied by a tenant named Seiler, and the left window belonging to apartments then occupied by a tenant named Natowitch. The stone lay between the said two windows and projected somewhat over the opening in the fire escape. There was some testimony that some boys were playing or quarrelling on that fire escape, but the immediate cause of the fall of the stone was left uncertain. But the plaintiff showed that when Seiler moved into his apartments, he found the stone in the position already described ; that while he resided there, he let the stone remain, there ; that when he moved, he left it there ; that Seiler vacated his apartments about eighty days before the accident and that the defendant rented them to another tenant after the accident ; that in the meantime the premises were kept locked and that the, defendant had full control over them and even had, through a conversation with another person on the premises, actual notice of the presence of the stone on the fire escape, but neglected to remove it after such notice. And the plaintiff also gave proof that the defendant had a housekeeper on the premises, whose duty it was to keep the house in order and to take charge of the house generally, and that the said housekeeper had seen the stone from a year to a year and a half in the same position. There was no evidence that the tenant Nato witch had anything to do with placing the stone on the fire escape or maintaining it there.

In view of these facts the trial judge properly refused to dismiss- the complaint or to direct a verdict for the defendant, for upon the same and the other evidence in the case it was competent for the jury to find that the presence of the large stone or marble slab projecting over the opening in the fire escape in the manner it did, constituted under all the circumstances a standing menace to the safety of passers-by, of which the defendant had sufficient notice and which he was bound to remove irrespective of any duty specifically cast upon him by Section 26 of Chapter 566 of the Laws of 1887 relating to the erection of fire escapes, but which he failed to remove notwithstanding the notice and sufficient opportunity for the purpose. True many of these facts were contradicted by the defendant, but that only created a conflict and it was then for the jruy to determine the conflict.

The issues were submitted to the jury under a charge which fully and fairly guarded all the rights of the defendant, and were determined by them in favor of the plaintiff. The record discloses no exception which is tenable, and no sufficient reason appears why the verdict of the jury should be disturbed.

The judgment and order should be affirmed with costs. •

Sedgwick, Ch. J., concurred.  