
    Thomas F. Quigley, as Administrator, etc., of James Quigley, Deceased, Respondent, v. The H. W. Johns Manufacturing Company and The Phenix Chemical Works, Appellants.
    
      Negligence — alterations in a building mads by a tenant — liability of the tenant making them and of the owner of the building to another tenant injured by the fall of the building — expert testimony.
    
    A manufacturing company, upon hiring the upper part of a building, some forty feet high, divided into two portions by a floor constituting the ceiling of the basement, put up a second floor, to furnish support for the beams of which it cut a series of holes four inches deep in pilasters sixteen inches thick forming part of the walls above the first story, thus leaving the pilasters at such points of the same thickness as the neighboring walls, viz., twelve inches ; and upon the termination of its tenancy, in accordance with the terms of its lease, the manufacturing company removed the floor and beams and left the holes in the pilasters unfilled. "
    
      Neld, that it could not be said to have created, by its act, an intrinsically dangerous nuisance, rendering it liable for the death of the tenant of the basement of the building, occasioned some time after the manufacturing company’s removal by the collapse of the building during a heavy wind ; that its liability, if any, arose out of its violation of its obligation as tenant not to alter the condition of that part of the premises which it occupied so as to injure other tenants in the same building;
    That it was the duty of the owner of the building, upon regaining possession of the premises vacated by the manufacturing company, to use reasonable diligence to prevent the continuance of any condition created therein by the former tenant which there was reasonable cause to believe might occasion danger to the tenant who continued to occupy the other part of the premises;
    That a j ury might find that greater diligence was required of the landlord in ascertaining whether the premises were in a safe condition than would be demanded of the tenant — so that it-Would not follow that the tenant was guilty of contributory negligence in not appreciating a danger, for a neglect to ascertain which the owner would be guilty of negligence ;
    That upon the trial of an action brought by the administrator of the deceased tenant, to recover damages resulting from his death, an expert witness should be permitted to answer the question, “ Now state what in your opinion was the cause of the falling of that building,” and the further question, “Well, how in your opinion, did the force of the storm affect the building so as to cause it to fall—in what way.”
    Appeal by the defendants, The H. W. Johns Manufacturing Company and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 25th day of January, 1897, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 26th day of January, 1897, denying the defendants’ motion for a new trial made upon the minutes.
    
      William A. Jenner, for the H. W. Johns Manufacturing Company, appellant.
    
      George W. Wingate, for the Phenix Chemical Works, appellant.
    
      Charles J. Patterson, for the respondent.
   Willard Bartlett, J.:

On the morning of the 8th day of February, 1896, a brick building belonging to the Phenix Chemical Works and situated on Thirty-ninth street near Second avenue, in the city of Brooklyn, was blown down in a violent storm and collapsed, causing the death of James Quigley, a cooper, who was a tenant on the ground floor. This action was brought by his administrator to recover damages for wrongfully causing his death against the Phenix Chemical Works, from which he rented the lower portion of the building, and also against the H. W. Johns Manufacturing Company, which had been a tenant of the upper part of the structure, and had made a series of cuttings or holes in the wall of the building, to the weakening effect of which its collapse was attributed. The plaintiff has recovered a verdict of $4,000 against both defendants, and both defendants have appealed.

The case presents some interesting questions of law, and it will be necessary for us to consider: (1) The alleged negligence of the H. W. Johns Manufacturing Company, the tenant creating the condition which is said to have caused the accident, but whose tenancy had ceased before the accident occurred ; (2) the alleged negligence of the Phenix Chemical Works, the landlord of the plaintiff’s intestate, by whose action or non-action the condition created by the H. W. Johns Manufacturing Company was allowed to continue after the termination of the tenancy of that-corporation, and (3) the alleged contributory negligence of James Quigley, the tenant, who was killed.

The building was a brick structure, between one hundred and thirty and one hundred and forty feet in length, thirty feet wide, and between thirty-five and forty feet high from the ground to the peak of the roof. It was constructed in 1877 by the Phenix Chemical Works for the manufacture of sulphuric acid. The walls were sixteen inches thick to the top of the first floor. Above that to the roof the thickness of the walls was twelve inches, but this upper portion of the wall was strengthened by a series of pilasters sixteen' inches thick (that is to say, four inches thicker than the wall), which pilasters were thirteen feet, apart.- As these pilasters were two feet wide; the side walls of the building may correctly be described as sixteen inches thick for one-third of their height, and twelve inches thick for the remainder, except for the two feet' occupied by each pilaster, where the thickness was. sixteen inches. Each pilaster was so built as to constitute a part of the wall itself.

In 1891 the Phenix Chemical Works ceased to do business there and took out a lead chamber which occupied the upper portion, leaving-the building divided into two parts by a floor which constituted the ceiling of the basement. In January, 1894, the plaintiff’s intestate, James Quigley, hired the building from the Phenix Chemical Works for use as a cooperage, at a rent of fifteen dollars a month. His principal customer was the H. W. Johns Manufacturing Company, and in October, 1894,' with his sanction, the Phenix Chemical Works rented to the H. W. Johns Manufacturing Company all of the building except the ground floor, at the rate of fifteen dollars a month. In the correspondence which constituted the contract it was stipulated that, inasmuch as the H. W. Johns Manufacturing Company would have to put in various ceilings fittings, partitions, double windows, etc., entirely • at its own expense, it was understood that whatever it put into the building was its own property and could be removed when the premises were vacated.

The Johns Company went into possession under this contract of letting, and put up a second floor between the first floor and the roof. For this purpose it caused holes four inches deep to be cut in the pilasters to receive the ends of the beams or girders which were to support the floor. There were about twenty-one of these holes in all, and the size of .each girder was six by ten inches. The Johns Company continued to occupy the upper part of the building and use this floor after its construction was completed, until the autumn of 1895 when its tenancy terminated, and it removed the floor, including the beams or girders, the ends of which had been inserted in the series of holes already mentioned. These holes were left unfilled, and remained so up to the time when the building fell. No consent of the Brooklyn department of buildings to the alteration of the building by the removal of the beams or girders was ever obtained by the Phenix Chemical Works or the Johns Company. It does not appear that any officer or representative of the . Phenix Chemical Works had actual knowledge that the cuttings had been made in the pilasters for the introduction of the beams, or that the holes had been left, unfilled upon the removal of the girders, until after the Johns Company had moved out of the building. Subsequently to the removal, however, and in the early part of December, 1895, Mr. Edward M. Gridley, the secretary of the Phenix Chemical Works, visited the building and went upstairs with Quigley who called his attention to the holes in the wall, and said that he did not think the Phenix Chemical Works had left the wall looking very nice. Mr. Gridley told him he thought they had left the building in better condition, take it .altogether, than when they found it, and nothing further was said between them on the subject. There is other evidence in the case that Quigley was present at the time of the removal of the beams, and the fair .inference is that he must have been well aware of the fact that the holes had been left unfilled.

Although the evidence did not fix the precise moment at which the building fell, counsel agreed that it was about nine-twenty-five or nine-twenty-six a. m. A violent storm of wind and rain prevailed in the vicinity at the time. The records of the United States weather bureau in the city of New York showed that between nine-twenty and hine-twenty-five o’clock that .morning' the wind blew from the east at a velocity of fifty-two miles an hour, and that the extreme velocity for one minute was fifty-eight miles. The evidence of the local forecast official in charge of that bureau tended to show that similar conditions probably prevailed in that part of Brooklyn where this building stood. He said that a storm with wind of fifty-eight miles an hour was not a common occurrence in this locality, although such storms occurred every winter, and there are half a dozen storms every .winter running from fifty to sixty miles an hour, with gusty conditions accompanying them. In November, 1395, there were two storms of fifty miles an hour, and in December, 1895, the wind on two occasions attained a velocity of eighty miles an hour. These storms in November and December the building proved strong enough to resist.. It was the contention of the plaintiff, however, that the side wall on the east had been so weakened by the row of holes left in the pilasters that it was not strong enough to withstand the force of the wind which struck it in the storm on the morning of February 6, 1896 ; that the entire building fell in consequence of the weakness of this wall, thus causing the death of Quigley, who was. engaged in his work there at the time; that the Johns Company was liable for his death, because it had wrongfully created the condition which caused the wall to fall, and that the Phenix Chemical Works were also, liable, because that corporation, being the landlord in control and possession of the upper part of the building where the holes were, had allowed them to remain unfilled.

From this statement of the facts it will be seen that the tenancy . of the Johns Company ceased many xveeks before the building fell. The theory upon which.the learned counsel for the plaintiff would hold that corporation is that, by its act in cutting the holes, it created an intrinsically dangerous nuisance, imminently perilous to the lives of the other persons in the occupation of the building; and he cites those cases in which the creator of such a condition has been made to respond for injuries resulting therefrom, even after his control over that condition has ceased. (Thomas v. Winchester, 6 N. Y. 397; Coughtry v. Globe Woolen Co., 56 id. 124; Devlin v. Smith, 89 id. 470.) But no such state of things existed here as was represented in those cases. In labeling a deadly poison as a harmless niedi•cine there is an obvious danger to every person who may have occasion to use the poisonous drug thus labeled; so it is plain that the defective construction of a scaffold, intended for the use of workingmen upon a lofty building, will be likely to imperil the lives of those who are called upon to make use of it. In this case, however, the cutting of the comparatively small holes in the pilasters, still leaving the pier at its thinnest .point just as thick as the neighboring wall,, cannot fairly be regarded as the creation of a condition of imminent danger which was at all obvious or readily apparent to any one. Indeed, it may fairly be inferred that if the representatives of the Johns Company, at the time they left the holes, in the building, had taken the expert advice of some of the very-highly qualified witnesses who testified upon this trial, they would have been assured that the holes constituted no source of danger whatever.

So far as the Johns Company is concerned, the true ground of liability would seem to be an entirely different doctrine of law. Where the owner lets different parts of the same building to different tenants, each tenant has the right as against every other that such other tenant shall not injure him by any active interference with the part which such other tenant occupies. Thus, it is plain that the tenant of the second story has a right that the first story shall remain intact so far as may be necessary for the support of the premises démised to him, and also that the roof on the story above shall not be interfered with so as to permit his premises to be injured by the action of the elements. This right is in the nature of an easement. (See Washb. Ease. [4th ed.] 639-647; Pierce v. Dyer, 109 Mass. 374.) Out of this easement springs the obligation on the part of one tenant to exercise reasonable care not to alter the cozv dition -of that part of the premises which he occupies so as to injure other tenants in. the same building. A failure in this respect constitutes actionable negligence. (Eakin v. Brown, 1 E. D. Smith, 36, 44.) Upon this doctrine the cause of action here asserted against the Johns Company is iiot for a violation of the easement, which would have accrued at the time the beams were removed from the holes and the holes were left unfilled, but rests, upon the violation of the obligatiozi arising out of the easement, which violation occasioned the death of the plaintiff’s intestate. In this view, the cause of action, being for negligence, did not accrue until the killing of Quigley by the fall of the building.

It remains to inquire, in, reference to this defendant, whether -the trial judge was right in charging- the jury that it was an unlawful thing to remove the floor from the building in November, 1895, without the consent of the building department of the city of Brooklyn. This instruction was given at the request of the plaintiff, the judge saying that he had not seen the Building Law, but that he assumed the proposition to be correct, and, therefore, charged it. It is sought to be sustained by reference to section 32 of chapter 481 of the Laws of 1894. But I do not think that the language of that section supports the proposition. The statute does provide that before “ the erection, construction or alteration of any building, or part of any building,” is commenced in the city of Brooklyn, the owner, or his agent or architect, shall submit to the commissioner of buildings a detailed statement in writing of the specifications and a full and complete copy of the plans of the proposed work. The only prohibition, however, in-the section cited, against the commencement or continuance of work, without the approval of the commissioner of buildings and the issuance by him of a permit, is contained in the following sentence, which does not embrace alterations : “Such statement and copy of the plans shall be kept on file in the office of the commissioner of buildings, and the erection, construction, or any part thereof, shall not be commenced or proceeded with until said statements and plans have been- so filed and approved by the commissioner of buildings and a permit issued by him therefor.”- The probability is that the word alteration ” was omitted by accident or inadvertence from this portion of the statute, but I think it quite clear that the section as it stands did not make it unlawful for the Johns Company to remove the floor without the consent of the building department. If so, the instruction to the jury on this subject was erroneous.

As to the liability of the - Phenix Chemical Works, the responsibility of that corporation for the accident, if it is responsible at all, must arise out of its relation as landlord to Quigley as tenant. At. the time of the accident by which Quigley lost his life, the upper portion of the building in which the holes had been cut had been restored to the Phenix Chemical Works, and was wholly within the custody of that company as landlord. The rule, therefore, would seem to apply which was laid down by Van Brunt, J., in Bold v. O'Brien (12 Daly, 160) in this language : “ The landlord, as far as the tenant is concerned, where the tenant occupies but a small portion of the tenement, is bound to keep the parts of the tenement under his control in such a state of repair that the tenant may occupy his premises with safety.” The rule has frequently been asserted in the law of landlord and tenant that a landlord who occupies the upper story of his building, leasing the lower story to a tenant, may not negligently derange the construction of the upper story so as to injure the property of the tenant on the floor below. (Glickauf v. Maurer, 75 Ill. 289.) In Priest v. Nichols (116 Mass. 401) the plaintiffs were.tenants on the lower floor of a building belonging to the defendants, who themselves occupied the floor above. It was alleged that the defendants had charge of a waste pipe leading through the lower floor and negligently permitted it to get out of repair so that the water damaged the plaintiffs. The court held that these questions were properly left to the jury, and sustained the verdict for the. plaintiffs, saying: “ The rule that a landlord is not bound to keep the premises of his tenant in repair, and therefore cannot be held responsible for negligence, if out of repair, has no application to the facts presented in this case.” In Toole v. Beckett (67 Maine, 544) the plaintiff hired a store from the defendant, who retained possession, care and control of the upper part of the building. The tenant’s goods in the store were injured by rain which came down between the roof and the chimney; and the landlord was held liable for negligence in the manner of maintaining the roof. Under such circumstances it was held that the landlord undertakes so to exercise his control of that portion of the premises remaining in his possession as to inflict no injury upon his tenants. Applying the doctrine of these decisions to the case at bar, there is no difficulty, in holding that the Phenix Chemical Works owed to Quigley some degree of diligence in respect to the condition of the upper part of the building. Their obligation, as it seems to me, was to exercise the reasonable care of a prudent landlord on regaining possession of the upper part of the building, not to suffer the continuance of any condition • there created by the former tenant which they knew occasioned, or-had reasonable cause to believe would occasion, danger to Quigley. If they iulfilled this obligation, they should be exonerated. If they failed to fulfill it, then they should be held liable, unless relieved by the contributory negligence of Quigley himself.

This brings us to the third important question in the case. It is argued with great earnestness that it is illogical to condemn the Phenix Chemical Works for failing to discover that the holes in the wall were dangerous, and at, the same time to acquit Quigley. Indeed, in the view taken by the trial judge, I do not see how a verdict for the plaintiff could very well be upheld, for by the twenty-sixth and twenty-seventh instructions, given at the request of the Phenix Chemical Works, the jury were told that the standard by which they were to ascertain whether there was any. negligence, either on the part of Quigley or the Phenix corporation, was what was apparent to a reasonable man upon ordinary inspection, thus assuming that only the same measure of diligence applied to the landlord as applied to the tenant. I am inclined to think that this assumption is incorrect. The reasonable care of a prudent landlord may well require a higher degree of actual diligence, and circumspection than the reasonable care of a prudent tenant. Where the landlord makes or tolerates a change in the construction of that portion of the premises which remains under his control, I think he is bound to take precautions against endangering the life, limb or property of the remaining tenant. Precisely what prudence requires that he should do to this end may vary according to the circumstances of the case; and a jury might well find that he ought not to remove a permanent portion of the structure, or allow'' the same to be removed, without some advice or inquiry of persons skilled in building construction as to the effect of such removal'on the stability of the edifice. A prudent tenant, on the-other hand, occupying another part of the- building, whose only- information of the change was- derived from ordinary observation, and who possessed no special knowledge of building, might be exonerated from any imputation of negligence on his part for not discerning or appreciating the danger or extent of the danger involved in the changed construction.

It seems to me entirely possible, therefore, for a jury to take a view of the evidence in this case which would render the landlord liable, and would relieve the. tenant, who lost his life, from any charge of contributory negligence. In saying this, I do not mean that a jury ought to take that view, for the evidence is also quite capable of a view which would wholly exonerate both defendants. But that there was a question of fact'to be determined by a jury as against the Phenix Chemical Works, as well as against the IT. W. Johns Manufacturing Company, appears to be entirely clear.

There must be a new trial, however, not only by reason of' the error already pointed out, in charging the jury that the removal of the floor without the consent of the building department of the city of Brooklyn was unlawful, but also by reason of the exclusion of certain evidence which was offered in the course of the.examination of Hr. George H. Olcott, the president of the Plienix Chemical Works, who was an expert witness in regard to building construction, and who superintended the erection of the building which collapsed. It was the evident purpose of counsel for. the defendants to prove by this witness, among other things, that the line of holes had nothing to do with the break in the wall, and that the fall of the building was due to some other cause. To this end he.was asked the following question : “Now, in view of the fact that the wall fell along the line of the break, as you have testified, and that this line of the break was a considerable distance below the line of the holes, what, in your opinion, had the holes to do with the break ? ” Objection was made, but before any ruling the witness answered: “Nothing.” -The record then goes on to say: “Mr. Patterson : That is an expert question. Mr. Wingate: I think the witness has qualified himself as an expert. The Court: I .think that is something about which the jury can tell just as well as the witness. I think that is the very question for the jury. [Objection sustained. Both defendants except].”

The learned counsel argues that this question was actually answered,, and the answer was not stricken out; and, perhaps, that is enough to avoid the exception, although the jury, if of the average intelligence, must have understood the ruling as excluding from their consideration the answer which had just been given. But the same argument will not apply to .the exceptions taken to the exclusion of the next two questions, which the trial judge refused to allow on the ground that they were solely for the jury. The first of these questions was: “ Q. Now state what, in your opinion, was the cause of the falling, of that building?” The second was: “ Q. Well,, how, in your opinion, did the force of the storm affect the building so as to cause it to fall — in what way?” The testimony which these questions sought to elicit was admissible, notwithstanding the fact that it called for an opinion upon the question or one of the questions which the jury were to determine. (Meyer v. N. Y. C. & H. R. R. R. Co., 98 N. Y. 645; Van Wycklen v. City of Brooklyn, 118 id. 424; Covert v. City of Brooklyn, 6 App. Div. 73.) There was no suggestion that Mr. Olcott was not a thoroughly ■competent expert, and, in the case! first cited,, the court said : “ The witness, as an expert,-and speaking upon a question' of science, might very well be asked, in presence of a given effect, of what causes, it either was or might be the resultant.” The subject under consideration relating to-the construction of buildings, and the mechanical action of external forces upon an edifice constructed in the particular manner, called for the application of scientific or. skilled knowledge within the meaning of' the rule laid down by Hr. Justice Bradley in Schwander v. Birge (46 Hun, 66, 70), where hedeclared that to warrant, the admission of opinion evidence “ the subject milst.be one-of science or skill, or. one of which observation and experience have given the opportunity and means of knowledge, which exists in reasons rather than descriptive facts, and, therefore,, cannot be intelligently communicated to others not familiar with the subject so as to possess them with a full understanding of it.” And in that case the same learned judge upheld the exclusion of the ■opinion evidence offered on the1 trial' upon the .express ground that the inquiry “ involved no question of architecture as such, no combination of forces or strength of structural support requiring Scientific -or mechanical deduction.” Here, on the other hand, the inquiry with which .the jury were most concerned did involve precisely such questions, and the exclusion of the opinion evidencé was clearly erroneous. ... ;

The-judgment should be reversed and newtriul granted as to both defendants.

All concurred, except Woodward, J., not sitting.

Judgment and order reversed and new trial granted,, costs to abide the! event.  