
    Pratt, Hurst and Company, Limited, Respondent, v. Edward N. Tailer, Individually, Appellant, and as Sole Surviving Executor and Trustee of the Last Will and Testament of Thomas Suffern, Deceased, and Mary Augusta Duer, Individually, Appellant, and as Substituted Trustee under Said Will.
    First Department,
    December 3, 1909.
    Landlord and tenant — injury by leaking roof — lease requiring notice to landlord—proof necessary to recovery -^erroneous charge — evidence — former testimony of deceased witness — objection to incompetent testimony given on former trial.
    Where a lease requires the landlord to keep a roof in repair, but provides that he shall not be liable for damages caused by leakage unless he neglebt-s to make necessary repairs within a reasonable time after written notice, the tenant, not having given notice, cannot recover damages to goods caused by leakage merely because the landlord allowed third parties to install an electric testing station on the roof, in the absence of proof that the roof was not suited to such use and that it was likely to and did cause the leak.
    Moreover, where the party installing the electric station was in possession of the roof to the tenant’s knowledge- when the lease was made, the tenant was bound by the agreement that the landlord should not be liable for damages caused by leakage unless written notice was given.
    It is immaterial that the party installing the testing station bad agreed with the landlord to keep the roof in repair, for the landlord was bound to keen it in repair so' far as the tenant was- concerned, and could not delegate that duty. , . ■
    
    As the lease required written notice to the landlord, it'was error to charge that the tenant could recover if the jury found the roof was in bad repair and that fact was known to or could have been readily ascertained by the landlord, in the absence of proof of facts which dispensed with notice.
    A charge that the law imposes on the owner of a building who leases part of it the duty of- keeping the roof, halls and stairways in order is erroneous as applied to this lease requiring notice to be given.
    ■ Under the circumstances it waS error to charge that if .the,persons installing the testing station on the roof were negligent, it was chargeable to the landlord, • . and tliatlhe jury could render a verdict' for the tenant if they found either -that the pipe draining the roof became stopped through the negligence of the persons installing the testing.station, or if the roof -was out of repair.
    The above errors are not cured by the further charge that if the leakage was due to defects in the roof caused by ordinary wear and tear, of by causes other than the acts of the landlord or the persons installing the testing station, the verdict must be for the defendant.
    Testimony of a deceased .witness given in a prior action between the same parties to recover for the same cause may be read in evidence, although the former action'was against the defendants individually instead of against them indi vid- ' uall.y and as executors, , . ...
    Where the former testimony of a deceased witness is offered under section 830 of the Code of Civil Procedure the other party may exclude so much of the testimony as is inadmissible, although objection was not made at the former trial.
    Appeal'by the defendants, Edward bT. Tailef, individually, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the covinty of New York on the 27 th day of April, 1909, upon the verdict of a jury, . and also from an order entered in said clerk’s office on the 26th day of April, 1909, denying the motion of the defendants individually for a new .trial made upon the minutes.
    
      George R. Coughlan, for the appellants.
    
      Arthur L. Marvin, for the respondent.
   McLaughlin, J.:

The plaintiff leased from the defendants a portion of a building in the city of New York. The lease' contained a provision that the defendants should keep the roof in repair but should not' be liable “ for any damage caused by leakage of the same, unless they shall neglect to make the necessary repairs within a reasonable time after receiving a written notice of such leakage.” During the term of the lease a heavy rain storm occurred and water leaked through the roof and damaged plaintiff’s goods. The action was thereafter brought to recover the damages alleged to have been' sustained. The jury rendered a verdict in favor of the plaintiff for the full amount claimed, with interest, and from the judgment entered thereon and an order denying a motion for a new trial, defendants appeal.

At the trial it appeared that for some time immediately prior to the time plaintiff’s goods were injured, the defendants had permitted the Holmes Electric Protective Company to use the roof of the building for a testing station, and it had strung wires and placed appliances thereon. The company had agreed with the defendants to keep the roof in good repair and had in fact made repairs a short time before the leakage occurred. The roof sloped toward one of the rear corners, where there was a basin about three feet square and a foot deep, from which water from the roof was carried away by a leader. The mouth of this leader was protected by a wire screen or rose,” and after the storm referred.to it was found this screen had become choked with pieces of wire and paper, so that the water could not run off, and by reason of that fact had backed up over the roof for five or ten feet around the basin and the leakage had been caused in this way.

It is not claimed that a notice called for by the lease had ever been served upon the defendants, and it is contended by them that in the absence of the service of such notice a recovery ought not to be permitted. This question was presented to and determined by the Court of Appeals on a demurrer (186 1ST. Y. 417), the court holding, as appears from the head note, that the provision in the lease requiring a written notice did not exempt defendants from liability for damages caused by leakage, although no notice was given, where the leakage was caused by their having permitted a third party to use the roof for purposes to which it was not adapted, thereby rendering it leaky and unsafe, to the knowledge of the lessors. At the trial no attempt was made to show that, the defendants had actual knowledge of any defects in the roof, the plaintiff’s contention being that the ■ Court of Appeals had determined all that was necessary to show was that the defendants had permitted the Holmes Company to use the roof. I do not understand from tlie opinion- that that court laid down any such rule. It seems to me it was'necessary for the plaintiff, in order to recover, to prove that the roof was not suited to the use to which the Holmes Company proposed to put it, and the use by that company was likely to and did so injure the roof that water leaked through. If I am correct in this conclusion, then the plaintiff failed to prove a cause of action, because there was no proof offered to the effect that the authorized use of the roof by the Holmes Company was likely to or did cause the leakage, unless it can be inferred from the fact that there were workmen upon the roof, which I do not think it can. It did not appear how many' of the. Holmes Company’s employees used the roof or what effect such use had upon the roof, and in the absénce of such proof I do ' not see how the defendants can be said to be liable simply because they permitted persons to go upon the roof.

Hot only this,. but it would seem that the Holmes Company was in possession of the roof when the lease was made, and if this was so, and .the .plaintiff knew it, then having expressly agreed that the defendants should not be liable for leakage until after written.notice, it was, in that event, bound by this provision. The fact that the Holmes Company had agreed to keep the roof in repair is of no importance, because the defendants were bound to do that so far as' the tenant was concerned, and they. could not delegate their duty in this respect. (O'Rourke v. Feist, 42 App. Div. 136; Sciolaro v. Asch, 129 id. 86.) In this connection it seems to me the court erred in charging the jury that the plaintiff-was entitled to recover if they, found that this roof was in bad condition and that fact was known to these defendants, or by the exercise of ordinary care could have been readily ascertained.. As a general proposition this would be correct, but when applied, to the clause of the lease requiring notice to be given it is not correct. The defendants were not liable simply because the roof was in bad condition and they could have ascertained it readily by the exercise of ordinary care, unless a written notice had been served upon them or such a state of facts shown as to dispense with the necessity for such notice. ■ The'court also charged the jury, at the request of the plaintiff, “ that the law imposes on the owner of a building of this character the duty of keeping in order tlie roof, main halls and. stairway.” This, as a general proposition, was also a correct statement of the law, but not when applied to the lease in question, which required notice to be given. The court further charged that “ if you find that the Holmes Electric Protective Company were careless or negligent in talcing care of the roof, that is the same as if the landlord, that is, these defendants, were negligent;” and “ also, that if the jury find either that the leader pipe was stopped up by the negligence of the Holmes Electric Protective Company, or that the roof was in a state of disrepair, then they can find for the plaintiff' In other words, they do not have to find both things. That either the stoppage of the leader pipe or the defect in the roof will be an act of negligence.” Such instructions were erroneous and could not have failed to mislead the jury as to the real issue to be determined. It is suggested, however, that these errors were corrected by' the court thereafter charging: “In addition to what I have said, gentlemen, I want to say to you that if you find that the leakage was due to defects in the roof, caused by ordinary wear and tear, or by any other cause than the acts of the Holmes Electric Protective Company, or the acts of the defendants, your verdict must be for the defendants.” I do not think this was sufficient to remove from the minds of the jury what had previously been charged, viz., that if they found' the roof was in bad condition and the same could have been discovered by the defendants exercising ordinary-care, then they should find for the plaintiff. As the case was tried there were really two issues to be determined: (1) Whether there were discoverable defects in the roof before the storm; and (2) whether the use of the roof by the Holmes'Company, with the permission of the defendants, caused such defects and made it unnecessary for the plaintiff to serve a written notice before it could hold defendants liable for damage caused by the leakage. The second of these issues seems tó have been lost sight of — the case being tried as if the lease had contained no provision for a written notice.

The appellants also contend that error was committed in permitting the testimony of one Martin, plaintiff’s former manager, given upon the trial of another action to recover for this same loss, to be read in evidence. The other action was against' these same defendants but the words “individually and as” did not appear after their respective names. Martin died prior to the trial of the present action and his testimony was, therefore, admissible under section 830 of the Code of Civil Procedure. The subject-matter of both actions was the same and the.fact, that in the present action defendants are sued in both their individual and representative capacity did not render such testimony inadmissible. The parties are the same. (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262; Deering v. Schreyer, 88 App. Div. 457.) Portions of his testimony were obviously incompetent and inadmissible and the defendants’ objections thereto should have been sustained. Under section.830 of the Code of Civil Procedure, when the testimony of a deceased witness is read, such testimony or any part of it is “ subject * * * to any other legal objection to his testimony or any question put to him.” The fact that no objection was made to such testimony, when offered .on the former trial, or that an objection made was overruled, and the testimony received, is not binding or controlling on the subsequent trial. To so hold would be to. eliminate the words quoted from the section referred to.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellants to. abide the event.

. Patterson, P. J., Ingraham, Laughlin and- Clarke, J.J., concurred.

Judgment and order reversed, new trial ordered, costs to appellants to abide event.  