
    SCHMIDT v. COOK.
    
      N. Y. Court of Common Pleas ;
    
    
      General Term, June, 1893.
    1. Landlord and• tenant.\ The allegation and proof of the bare fact of ownership is not sufficient to charge the owner of premises which are occupied by others, with responsibility for injuries occasioned by a nuisance upon such premises.
    
    2. Negligence.J Where a person maintains upon his premises anything dangerous to life or limb, and of a nature to invite the intrusion of children, he owes them the duty of precaution against harm, and is liable to them for injury from that thing even though their own act—if not negligent—puts in operation its hurtful agency.
    3. The samel] Where the plaintiff in an action for personal injuries was eleven years old and not a child of infirm or inferior faculties, and the rock' on defendant’s premises which caused her injuries fell because she was playing about it,—held, that although plaintiff was suijuris, she was not responsible for the care of an adult, but only for a degree of care proper to her age and condition ; and that contributory .negligence was not a necessary inference from her conduct, but might be negatived by a contrary inference that she exercised due care.
    4. Appeall\ Although the complaint is bad in substance, a new trial maybe allowed on appeal; since an amendment maybe allowed and further evidence adduced. So held, upon an appeal from N. Y. city court to the N. Y. court of common pleas.
    Appeal from an order of the General Term of the city court reversing a judgment for plaintiff entered upon a verdict, and "dismissing the complaint without ordering a new trial, and directing an absolute judgment for the defendants.
    
      Action to recover for personal injuries brought by Lena Schmidt, an infant, by Frank Schmidt, her guardian, against Valentine Cook and John J. Radley.
    The plaintiff was a child of eleven years, and resided with her parents upon the premises, which were occupied as a tenement-house. While the plaintiff with some, companions was playing about a flagstone which stood up against the fence in the back-yard of the premises, it fell over upon the plaintiff’s foot causing the injury fo.r which the action is brought.
    The allegations of the complaint are as follows :
    
      “First. That the plaintiff is an infant under fourteen years, residing in the city of New York.
    “ Second. That on or about November 28, 1890, upon an application duly made in plaintiff’s behalf, the said Frank Schmidt was by an order of this court, duly appointed guardian ad litem of the plaintiff for the purposes of this action.
    “ Third. That the defendants, at the times hereinafter mentioned, were the owners of the premises No. 223 East Thirty-sixth street, New York City.
    
      “ Foiirth. That on or about the 20th day of August, 1890, while the said plaintiff was lawfully upon the said premises, No. 223 East Thirty-sixth street, New York City, she was injured by a stone falling upon her, which stone had been suffered to remain in a careless, negligent and dangerous position and manner upon said premises.
    “ Fifth. That by reason thereof the said plaintiff was severely bruised and injured in and about her legs and feet, so that it became necessary, by reason of said injuries so received, to amputate one of her toes ; that she was for a long time ill and unable to leave her bed and room, and suffered great bodily pain and mental anguish and suffering, and she is still confined to her house and has been unable to leave the same.
    “ Sixth. That the said accident occurred, and the said injuries were inflicted, without any negligence on the part ■of this plaintiff, and solely through the negligence and ■carelessness of the defendants and their agents, servants :and employees.
    “ Seventh. That by reason of the foregoing, plaintiff has been damaged in the sum of two thousand dollars.”
    
      At the trial, the court denied defendant’s motion to dismiss the complaint on the ground that it was neither alleged nor proved that the defendants owed the plaintiff any obligation or duty ; and the plaintiff obtained a verdict for $1000.
    
      The General Term of the City Court, held that the plaintiff was of sufficient capacity to form a judgment as to the probable results of her action, and that the complaint should have been dismissed because of her contributory negligence. It, therefore, reversed the judgment for plaintiff without awarding her a new triál.
    The plaintiff appeals to this court.
    
      Jeroloman & Arrowsmith, for appellant.
    I. A landlord of a tenement-house is bound to keep the yards, halls, etc., in proper repair and safe condition, and is chargeable in damages to any one injured for a failure to do so or for maintaining a nuisance therein (citing Doyle v. Lord, 64 N. Y. 432 ; Dollard v. Roberts, 28 State Rep. 569; 130 N. Y. 269; Henkel v. Murr, 31 Hun, 28 ; Palmer v. Dearing, 93 N. Y. 7; 1 McAdams Landlord and Tenant, 185, 191, 193, 399; Jennings v. Van Schaick, 20 Abb. N. C. 324; 108 N. Y. 530; Peil v. Reinhart, 127 Id. 381 ; Ahern v. Steele, 115 Id. 203; Timlin v. Standard Oil Co., 126 Id. 514; Edwards v. N. Y. & H. R. R. Co., 98 Id. 245).
    II. It was not necessary to allege in the complaint or prove that the premises were under the control or occupancy of the defendants or that they caused the nuisance; 4he allegation of ownership was sufficient (citing Schachne 
      v. Barnett, 9 N. Y. Supp. 717; Holmes v. Jones, 121 N. Y. 461, 466).
    III. The plaintiff owing to her tender years was not chargeable with that same degree of care and prudence which the law exacts from adults,'and even if she was sui juris she could only be held to such degree of care and caution as would reasonably be expected of a person of her age (citing Byrne v. N. Y. Central, etc. R. R. Co., 83 N. Y. 621; Dowling v. N. Y. Central, etc. R. R. Co., 90 Id; 671 ; Wright v. Detroit, etc. R. R. Co., 77 Mich. 123 ; S C., 43 Northwest Rep. 765 ; Palmer v. Dearing, 93 N. Y. 10; Henkel v. Murr, 31 Hun, 28; Elze v. Bauman, 2 Delehanty, 78; Stone v. Dry Dock, etc. R. R. Co., 115, N. Y. 104, 111).
    
      E. M. Burghard and Lewis Sanders for respondents.
    I. The complaint should have been dismissed, because (1.) the premises are not alleged to have been in possession of or under the control of defendants (citing Wolf v. Kilpatrick, 101 N. Y. 146, 151; Clancy v. Byrne, 55 Id. 129, 133 ; Cunningham v. Bay State Shoe & L. Co., 93 Id. 482 ; Harris v. Perry, 89 Id. 308, 314) ; (2.) the plaintiff is not alleged to have been there upon defendant’s invitation (citing Quiltye v. Battie, 135 N. Y. 201, 208) ; (3.) it is not alleged that defendant placed the stone there or omitted any act or duty upon which to predicate a charge of negligence (citing Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245, 257; Robbins v. Jones, 15 C. B. N. S. 221 : Jaffe v. Harteau, 56 N. Y. 398, 401).
    II. The plaintiff was guilty of contributory negligence (citing Tucker v. N. Y. Central, etc. R. R. Co., 124 N. Y. 308).
    
      
       By the amendment of Code Civ. Pro. § 2244, effected by L. 1893, c. 705, a tenant defending summary proceedings, may now set up any new matter constituting a legal or equitable defense or counterclaim.
    
   Pryor, J.

Assuming, the back-yard to have been reserved by the landlord for the common use of the tenants (Peil v. Reinhart, 127 N. Y. 381), that the rock was a nuisance, and that the landlord let the premises with knowledge of the nuisance, then, beyond question, he would be responsible for the injury to the plaintiff if in noway caused by her own negligence.

But, the fatal defect in the plaintiff’s case is that neither by allegation in the complaint nor by proof on the trial does it appear that the defendants were the landlords or in control of the premises. True, the receipts for the rent were by John E. Norris, Agent; but, agent for whom ? It may be that the premises were held by the plaintiff’s father as sub-tenant; that they passed out of the possession and control of the defendant owners before the existence of the nuisance and for a term extending beyond the demise to the father; that the nuisance was created by the immediate landlord, and that no notice of it, actual or constructive, was imparted to the defendants ; entirely consistent with the evidence is this state of fact; and surely, it is ineffectual to affect the defendants with a liability for the plaintiff’s injury.

It is conceded, however, that the defendants were owners of the premises ; but that fact alone did not make them responsible for a nuisance which they are not shown to have created or suffered to continue. “ A landlord out of possession is not responsible for an after-occurring nuisance unless, in some manner, he is in fault for its creation or continuance. His bare ownership will not produce that result ’’(Babbage v. Powers, 4 Silvernail, 211, 215, note; Wolf v. Kilpatrick, 101 N. Y. 146, 151). But, ownership is the solitary fact in the case upon which defendant’s liability is. founded.'

That the complaint should have been dismissed is evident; without argument.

The respondents insist, further, that the complaint should have been dismissed for the contributory negligence of the plaintiff; because it was her own act that caused the rock to fall. The so-called turn-table cases are clearly against the contention, the principle they establish being that where a person maintains upon his premises anything dangerous to life or limb, and of a nature to invite the intrusión of children, he owes them a duty of precaution against harm, and is liable to them for injury from that thing, even though their own act, if not negligent, puts in operation its hurtful agency (Barrett v. Southern Pacific R. R. Co., 91 Cal. 296; Lynch v. Nuerdin, L. R. 1 Q. B. 29; Sioux City & Pacific R. R. Co. v. Stout, 17 Wall. 657; Kansas, etc. R. R. Co. v. Fitzsimmons, 22 Kansas, 686; Evansich v. Gulf Coast, etc. R. R. Co., 57 Texas, 126; Koons v. St. Louis & Iron Mountain R. R. Co., 65 Mo. 592 ; Nagel v. Missouri Pacific R. R. Co., 75 Id. 653 ; Williams v. Kansas City, Springfield and Memphis R. R. Co., 96 Id. 275 ; A. & N. R. R. Co. v. Bailey, 11 Nebraska, 332 ; Kunz v. City of Troy, 104 N. Y. 344, 351).

It follows, therefore, that though the toying of the plaintiff with the rock was the occasion of its fall, contributory negligence is not a necessary inference, but may be negatived by a contrary inference, that the plaintiff was in the exercise of due care. Being eleven years old, and not of infirm or inferior faculties, she was sui juris and responsible for the observance of care—not, however, the care of an adult, but only for a degree of care proper to her age and condition (Kehler v. Schwenk, 144 Pa. 348; Swift v. R. R. Co., 123 N. Y. 645, 650; Byrne v. Staten Island Rapid Transit R. R. Co., 83 Id. 620). The intimation in Tucker v. N. Y. Central, etc. R. R. Co. (124 N. Y. 308) that an infant sui juris is held to the care of an adult was inadvertent, and is opposed 'equally to reason and authority.

It is not the contributory act merely, but the contributory negligence of a plaintiff that defeats his recovery.

Although the complaint be bad in substance, there must still be another trial, for an amendment may be allowed and further evidence adduced.

Bookstaver, P. J., and BlSCHOFF, J., concurred.

Order affirmed so far as it reverses the judgment, and reversed so far as it dismisses the complaint, and new trial ordered, costs to abide "event.  