
    Leo S. Stamm, Appellant, v. Charles D. Purroy and John Purroy Mitchel, Respondents, Impleaded with Catherine L. Purroy, Defendant.
    Second Department,
    December 24, 1915.
    Landlord and tenant — negligence — pleading — action against landlord for personal injuries—failure to allege that landlord undertook, to remedy defect.
    A complaint in an action against a landlord to recover damages for injuries to a person who resided with a lessee caused by the fact that a landing in the building gave way, fails to state a cause of action as against the landlord where it does not show that the premises were public or quasi-public in character and that the landing remained in the landlord’s exclusive control, or that the landlord undertook to make repairs and was negligent in failing to do so.
    Appeal by the plaintiff, Leo S. Stamm, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 11th day of May, 1915, upon a dismissal of the complaint by direction of the court at the opening.
    
      
      Thomas J. O'Neill, for the appellant.
    
      George V. Mullan [Edwin H. Updike with him on the brief], for the respondents.
   Jenks, P. J.:

The plaintiff complains of the negligence of the defendants, owners and lessors of certain improved premises wherein he resided with the lessee, in that when using a landing, it gave way so that the plaintiff fell to his injury. The general rule is that the landlord is not liable. (Jaffe v. Harteau, 56 N. Y. 398; Steefel v. Rothschild, 179 id. 277; Frank v. Mandel, 76 App. Div. 413; Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 314.) The plaintiff did not put himself within the limitations of this rulé. He did not plead that he was in use of premises of a public or quasi-public character, nor that the landing was a common part of a community house. He did not plead sufficiently that the landing had not been demised by the landlord so that it followed that it had remained in the landlord’s exclusive legal control. For although he alleged that the landlord maintained the said landings, stairs and railings, and exercised control over the same, this allegation is contained in a sentence of the complaint which reads as follows: “ The defendants were and they now are the owners of the premises known as Ho. 2762 Decatur Ave. * * * including the building thereon and including the landing and stairs and railing upon the side of the said house near the rear, and the defendants maintained the said landing, stairs and railings and exercised control over same, and the defendants leased the said premises to the occupants thereof.”

After the opening was finished, discussion followed and the counsel for the plaintiff said: “In addition to all this, as we have already stated in our opening, we state that the landlord here not only did agree to make the repairs but that he did come in and attempt to make the repairs and made them in a defective, dangerous way. As you know, the law is elementary that when he does make the repairs and makes them in a -.” If this was an accurate statement, appellant might well urge that the learned court erred in dismissal of the plaintiff upon the opening and the complaint. For a landlord who undertakes to repair and is negligent in that work may be held liable therefor. (Marston v. Frisbie, 168 App. Div. 670; Wynne v. Haight, 27 id. 7; Salvetta v. Farley, 123 N. Y. Supp. 230; Coggs v. Bernard, 2 Ld. Raym. 909.) And although such statement in the opening would have been wholly outside of the complaint, nevertheless the court, in the absence of specific objection, must have considered it in consideration of the motion for a dismissal upon the opening. (Clews v. N. Y. Nat. Banking Assn., 105 N. Y. 398, 404; Kley v. Healy, 127 id. 555, 559.) But I cannot find in the opening, or so much of it as is printed in the record, any language that fulfills this subsequent statement of counsel. All that is recorded is: “We will show you * * * that they were in this defective condition and continued so up to the very time of the accident, notwithstanding that these Clarks protested to Mr. Allen about this condition — the agent — upon several occasions, the Clarks calling the attention of Allen to it, and they told him Why don’t you fix it as you agreed to fix it ? You agreed to fix it before we moved in and you didn’t do it. You have sent around and put in a lower bar, but you haven’t fixed the top bar, and why don’t you do it ? ’ And they called his attention to the defect, and they never corrected it.” Reference to other parts of the opening shows that the plaintiff’s complaint rested upon the defective condition of the top bar. These words do not justify this said subsequent statement to which I have referred. And they are not tantamount to a charge that the landlord undertook to make repairs and was negligent in that undertaking.

The judgment is affirmed, with costs.

Present — Jenks, P. J., Thomas, Stapleton, Rich and Putnam, JJ.

Judgment unanimously affirmed, with costs.  