
    Mary Timlin, as Administratrix, Resp’t, v. The Standard Oil Company of New York, The Acme Oil Company, Elijah W. Murphy and Orando P. Liscomb, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 21, 1889.)
    
    1. Nuisance — Liability of lessor and lessee.
    The Standard Company .took a lease of a certain shed in the name of the Acme company, occupied it and. sublet a portion to the other defendants. The portion of the wall sublet fell killing plaintiff’s intestate, who was at work on adjoining premises. The court charged that if the wall was a nuisance as to adjoining owners when the lease was taken and continued so until the injury occurred, all the defendants were liable. Held, no error; that the oil companies were liable for letting the premises in a ruinous condition and the other defendants for having permitted them so to remain and thus continued the nuisance.
    2. Same.
    The Acme company cannot escape liability because of its non-possession if the premises were a nuisance when it permitted the Standard company to take possession in its stead.
    3. Same.
    A tenant who permits a nuisance to remain on the premises is liable to a third party for injuries caused thereby, even though he has not covenanted to make substantial repairs.
    4. Same — Charge.
    Where the court has explicitly instructed the jury that no recovery could be had unless the wall was a nuisance when the leases were made, a refusal to charge that occupation of a portion of the building at the time the wall fell was not a ground of recovery cannot be construed as a direction to the jury that the explicit instruction was not to govern them, and does not prejudice the defendant.
    5. Same.
    The court refused to charge that the notice given by the policeman shortly before the accident was immaterial. Held, that in view of the charge and of the evidence of opportunity to acquire notice, the refusal was not prejudicial.
    ■ Appeal from a judgment for plaintiff, entered upon a verdict upon a trial at the Albany circuit.
    The plaintiff complains that John Timlin, her husband and intestate, was, on the 12th day of September, 1885, killed by the falling of a brick wall upon him; that the fall of the wall was due to the negligence of the defendants.
    
      The testimony tended to show that the portion of the wall which fell was the easterly brick wall of a one-story shed, standing alongside and about six feet westerly of the westernmost tracks of the Delaware and Hudson Canal Company’s railroad in the city of Albany. The wall was eleven feet high, one foot thick, 111 feet long, and had been built forty years before, and at the time of its fall, and for years prior thereto, portions of it had been noticeably in a dangerous condition. The shed was the property of the New York Central and Hudson River Railroad Company. September 12, 1885, John Timlin, then in the employ of the Delaware and Hudson Canal Company, was engaged in driving spikes along the rails of the canal company’s track nearest the wall, when a large portion of it suddenly fell and killed him. The portion which fell was thirty-four feet six inches long at its base and forty-seven feet six inches long at its top.
    In July, 1884, the defendant, the Standard Oil Company, procured a lease of the shed in the name of the defendant, the Acme Oil Company, for five years, subject to termination by the railroad company by giving a written notice of sixty days. The Standard Oil Company was the owner of the majority of the stock of the Acme Oil Company, and the lease was for the benefit of the Standard Oil Company. It was stipulated that the liability of the Standard Oil Company was the same as if the lease had been to it The Standard Oil Company occupied a portion of the shed, but not the portion directly opposite the place where Timlin was killed. The defendants, Murphy & Liscomb, had been under-tenants of a part of the shed of Strain & Reynolds for a number of years prior to 1884. Strain & Reynolds were tenants of the New York Central Railroad Company, and also agents of the Standard Oil Company, and Murphy & Liscomb continued as tenants nominally under Strain & Reynolds, but really under the Standard Oil Company at the time the wall fell Their lease was renewed on the first of May of each year. They occupied that part of the shed the wall of which killed Timlin. Their lease was subject to the same termination as that of the Acme Oil Company. Strain & Reynolds, as agents of the Standard Oil Company, occupied the portion of the shed not leased to Murphy & Liscomb. The court charged the jury that if the wall was a nuisance as against the adjoining owner at the time the Acme Oil Company became the lessee of the premises in 1884, and continued in that condition until it fell, all the defendants were liable, provided the jury should find that Timlin was free from contributory negligence. The defendants severally excepted.
    
      E. Countryman, for pl’ff; M. Hale, for Standard and Acme Oil Cos.; N. C. Moak, for Murphy & Liscomb.
   Landon, J.

The jury found that the deceased was rightfully at work at the place where the wall fell upon him, and was free from negligence. The court charged the jury that if the wall was a nuisance as against the adjoining owner at the time the Acme Oil Company became the lessee of the premises in 1884, and continued in that condition until it fell, all the defendants were liable. The court defined the sense in which it employed the term nuisance as follows: A man has no right to maintain a building which is inherently weak and in a ruined condition, and liable to fall and do injury to the adjoining owner or the public. Such a building is a private nuisance to those owning property adjoining it, and if it fails and- inflicts injury upon any one lawfully in its vicinity, the owner is liable for all the consequences. The court further said, in substance, that no recovery could be had against the Acme company unless the wall was in an apparently ruinous condition when it leased it from the railroad company, or against the Standard company, unless it was dangerous before it renewed its lease to Murphy & Liscombe, in May, 1885.

The charge was sufficiently favorable to the defendants. A private nuisance is defined in Swords v. Edgar, 59 N. Y.,34 , as “Anything unlawfully or tortiously done to the hurt or annoyance of the person, as well as the lands, tenements and hereditaments of another.” The gist of the action is negligence, and whether by wrongful act or wrongful omission is not material in this case. The defendants are liable if they owed a duty to the plaintiff’s intestate respecting this wall which they failed to perform, and because of such failure the wall fell and killed him. That duty was, the moment they discovered the wall to be dangerous, to cease maintaining it in that condition or contributing to such maintenance by act or by Omission to act, they possessing the power of remedial action.

The defendant, the Acme Oil Company, was the immediate lessee of the owner. The Standard Oil Company assumed control under the Acme Oil Company’s lease, and has ever since occupied a portion of the building. What relations these two companies sustain to each other does not clearly appear. The Standard Oil Company admits that it is the real owner of the lease, and has been since its date, and it stipulates that its liability is the same as if it were named lessee in the lease. But no assignment or lease is shown. The admission by the Standard Oil Company is effective against itself, but not exculpatory of the actual lessee, whose agent or partner it may be for aught that appears.

The Acme Oil Company took the lease in its own name, and then permitted the' Standard company to control the premises thenceforth. The transaction implies a co-operation of the two companies, in which one is the lessee for the benefit of the other.

Murphy & Liscomb are under-tenants of the Standard Oil Company. They had long been in possession of that part of the premises from which the wall fell, and their lease was renewed in the May previous to the accident, in September, 1885. The deceased was not a party to any of these leases, and the plaintiff only examines them in order to ascertain who was maintaining the wall at the date of its fall, and whether the several leases were executed after its dangerous condition existed and was manifest. If the wall was really and apparently in a dangerous condition when one defendant leased it or the dangerous part of it to the others, then the ease stands in this wise: That, notwithstanding the dangerous condition of the wall, the defendant, the lessor, undertook to prolong the receipt of rent for it, and the defendants, the lessees, undertook to prolong its profitable occupancy, and neither took any precaution to prevent its doing injury to the innocent Clearly, they thus maintained the dangerous structure and prolonged the continuance of it as a peril; they did this for gain in reckless disregard of the rule, sic utere tua ut alienam non laedas, and of their duty to those to whom the structure was a peril The landlords, the oil companies, in such case are liable for the reason stated in Swords v. Edgar, 59 N. Y., 28, and also in the main case upon which their cousel rely, Edwards v. N. Y. & H. R. R. Co., 98 N. Y., 245, and as cited from Nelson v. Liverpool Brewery Co., L. R., 2 C. P. D., 311, because they were guilty of misfeasance in letting the premises in a ruinous condition.

In Swords v. Edgar, the deceased was killed by the fall of a pier on which he was engaged in unloading a vessel. The pier was private property, but devoted to the use of those having proper occasion to go upon it; it was in an unsafe condition when the defendant leased it to the tenant, and the lease contained a covenant that the tenant should keep the pier in repair. The landlord was held liable. The quasi public use of the pier amounted to a license to the deceased to engage in his work there. Surely, in the present case, the canal company, whose servant the plaintiff’s intestate was, needed no license from the defendants to work upon his employer’s premises. Todd v. Flight, 9 C. B., N. S., 377, is cited with approval in Swords v. Edgar. It was there held that the owner of premises who lets them to a tenant in a dangerous condition, who permits them to remain so until, by reason of want of reparation, they fall upon and injure "the house of an adjoining owner, is liable to an action. Davenport v. Ruckman, 37 N. Y., 568, is to the like effect. In this case the Acme Oil Company is the lessor or assignor of the Standard Company, and the latter the lessor of the other defendants. The case in this respect is like Clancy v. Byrne, 56 N. Y., 129, in which the defendant, who was the immediate lessee of the owner, sublet the premises without himself ever taking possession. There the defendant escaped liability because it did not appear that the premises were in an unsafe condition when he sublet them. The Acme Company was not in possession. Neither was the defendant in Clancy v. Byrne, but his liability was tested by the condition of the premises when he passed their possession to his under-tenant. The case cited holds that the Acme Company cannot escape liability because of its non-possession, if the premises were a nuisance when it allowed the Standard Company to take possession in its stead. It cannot close its eyes to the condition of the premises, and claim that its self-imposed blindness relieves it from duty. It is by its acts and its negligence a co-contributor with the Standard Company.

The Standard Oil Company, by its stipulation, consents that its liability is to be determined in like manner as if it were named as a lessee in the lease to the Acme Company. Whether co-lessee with the Acme Company or sole lessee, its liability is established by the cases _ cited. Within the cases above cited the defendants, Murphy & Liscomb, as the actual occupants of the premises and constant maintainers of the dangerous structure, are liable. Irvine v. Wood, 51 N. Y., 224.

Murphy & Liscomb urge that as they had not covenanted to make substantial repairs they are not liable for the omission. That may be so between themselves and their landlord, but their liability to the plaintiff is because they continued a nuisance until it killed the deceased. Wasmer v. Del, Lack. & W. R. R. Co., 80 N. Y., 212.

The Standard Oil Company requested the court to charge the jury that the occupation of a portion of the building by the company at the time the wall fell was not a ground of recovery against it. The court declined to charge as requested.

The theory upon which the trial court submitted the case to the jury made the liability of this defendant to depend upon the question whether this wall was a nuisance at the date of the' renewal of this defendant’s lease to Murphy & Liscomb in May previous to the accident. This was distinctly stated in the charge, and was repeated after the denial of the request now under consideration. Assuming that this request might have been properly granted, we cannot think that its denial in any way prejudiced this defendant’s case. This defendant’s possession was the same after as before this' renewal. The previous possession was evidence of its knowledge ■ at the date of the renewal; the possession continued to the date of the accident, but as the court explicitly instructed that the defendant’s liability depended upon the facts at the date of the renewal, we do not think we ought to hold that the mere denial of this request was an instruction that its previous and subsequent explicit instructions were not to govern the jury.

The refusal of the request to charge the jury that the notice given by the policeman to the foreman of the agents of the Standard Oil Company, shortly before the accident, of the condition of the wall, was entirely immaterial upon the question of the Standard Oil Company’s liability, is urged as error. These agents were the persons in posession in behalf of the company before the renewal of the lease, as well as afterwards. If oral or written notice had been necessary to establish the liability of this company, then the defendant would have reason to complain of this particular notice. But the case was tried and submitted to thh jury upon the question whether this defendant had had ocular notice. In other words, whether its agents, in the building daily for years, had not seen the patent defects in this wall.

The rule undoubtedly is that, where one hires or buys land upon which there is an existing nuisance which may prove injurious to' others, notice of it ought to be brought to him before suit will lie against him. This notice maybe given by others or acquired by himself. The manner of it is not important if the facts justify the inference that he acquired it. Where the nuisance is not obvious, as where a culvert constructed by his predecessors in title is too small to pass the high waters of a freshet, the grantee, in the absence of notice received from others or through his own observation, has been excused in the first instance. Conhocton Stone R. v. Buffalo etc. RR. Co., 51 N. Y., 573; so in the case of an overhanging gutter, Haggerty v. Thompson, 45 Hun, 398; 10 N. Y. State Rep. 137; also in a case of a conductor on the front of his house, not used by him, through which the water from his neighbor’s roof discharged upon the sidewalk and formed ice. Wenzlick v. McCotter, 87 N. Y., 122. But if he had made or repaired it the case would be different, for he would be an active participant and upholder. Actual notice, however acquired, is enough to charge him. Brown v. Cayuga etc. R. R. Co., 12 N. Y., 486; Irvine v. Wood, 51 N. Y., 225; Swords v. Edgar, 59 N. Y., 39; Wasmer v. Del., Lack. & W. R. R.Co., 80 N. Y., 212.

The court instructed the jury that no recovery could be had against this defendant unless it knew or ought to have known or had notice before the 1st of May, 1885, that the wall was in a dangerous condition. In view of this charge and of the evidence of opportunity to acquire notice, the refusal to charge that the notice given by the policeman after that date was immaterial could not be expected to prejudice the defendant.

We have examined all the other exceptions and find none requiring a reversal.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.  