
    James Ahern, Adm’r, etc., Resp’t, v. Rosalie N. Steele et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    
      1. Lessor of property which is out of repair—Liability to strangers.
    • All owners of property, who lease thé same when out of repair, are liable to strangers for accidents arising from such want of repair.
    2. Same—Real estate descends charged with liability for being OUT OF REPAIR.
    Where parties acquire title to premises by inheritance, such title devolving subsequent to the lease of said property, the parties so acquiring title take it cum onere. The condition of the property before the leasing, and notice thereof to their ancestor, devolves upon them together with the title, and they cannot hold the title and divest themselves of the obligations which had attached to the previous owner.
    
      t
    
    3. Same—Duty to abate nuisance.
    Where the public has the right to pass over a wharf, and it becomes out of repair, it is a public nuisance,and the owners thereof are bound to abate the nuisance if they have the right of entry.
    Appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and from an order denying a ' motion for a new trial.
    
      John B. Whiting, for app’lts; Edward D. McCarthy, for resp’t.
   Van Brunt, P. J.

One of the main questions involved upon this appeal arises from the fact that the title to the fee of this pier devolved upon the defendants subsequent to leasing of the pier.

That the pier was out of repair at the time of the lease and continued so up to the time of the accident, has been found by the jury upon sufficient evidence.

All owners of property, it has been repeatedly held, who lease the same when out of repair are liable to strangers for accidents arising from such want of repairs.

The defendants in this case, by taking these premises by inheritance, took them cum onere, and cannot relieve themselves by the claim that the title devolved subsequent to the lease, and that therefore they were not required to repair. The King v. Pedly, 1 Adolphus & Ellis, 822.

The condition of the pier before the leasing and notice thereof to their ancestor devolved upon them together with the title, and they cannot hold the title and divest themselves of the obligations which had attached to the previous owner. These obligations, so to speak, ran with the land, and every owner is hable during the time he holds the title. Suppose this case was in no way complicated by the question of lease, and it was necessary to show notice of a defect before recovery could be had, it is plain that notice to an ancestor or testator would be also notice to the. heir or devisee. The heir or devisee would take the land burdened with the notice, and the want of notice to him would not absolve from liability.

In the case at bar the defendants therefore took the land subject to the liability that because of the defective condition of the pier at the time of the lease the landlord was liable for any accidents arising from such defective condition and they having become landlords the liability attached to them.

But there is another consideration which also seems to point to the existence of a liability upon the part of the defendants.

The wharf was open to the public; it is treated as a public street; and when it becomes out of repair, it is a public nuisance.

The defendants had the right to enter and make repairs; and although as between themselves and their tenants they were not bound to do so; yet, as between themselves and the public, they were bound to abate the nuisance if they had any right of entry.

The only ground upon which a landlord has been exempted from liability in these cases, has been because he had no right of entry; the premises were not his for the time being, and therefore he was neglecting no duty.

In the case at bar, the right to enter and repair was expressly reserved in the lease. The landlord owed a duty to the public; the public had the right to pass over this pier; and there was no impediment preventing the landlord from fulfilling his obligations in this respect. His not doing so, was therefore negligence.

The exceptions to the admission of evidence do not seem to have been well taken. The condition of the pier, within two days after the accident, was pertinent, as there is no pretense of any change.

The evidence of the measurement of the hole, six months after the accident, was admissible in connection with the evidence of the plaintiff, who swore that the hole measured was the one through which the deceased fell.

The exceptions to the charge are equally unavailing. It certainly was not, as matter of law, contributory negligence to have permitted this boy to be upon the pier to which he had come to meet his father, after having joined him the accident happened.

Nor was it error to refuse the request that the plaintiff could not recover unless the jury believed that the hole, through which the boy fell, was the result of the defective condition of the pier at the time the lease was made. The whole purport of the charge was to this effect, and although perhaps this point was not emphasized as it might have been, the rule laid down in the charge from the case cited, plainly recognized the principle contended for.

In any event the right to enter and repair, existing in this case, the duty of repair existed in respect to the public, notwithstanding the lease, and it was not necessary that the jury should find that the particular defect antedated the lease.

The damages appear to be excessive, as it does not seem that there can be any pecuniary damage resulting from the death of so young a child, however great a shock to the feeling its loss may entail; but as recoveries have been sustained based upon the death of much younger children, we see no reason for interference with the verdict upon this account.

The judgment should be affirmed with costs.

Brady and Daniels, JJ., concur.  