
    Rudolph Tauber, Respondent, v. Philip Rochelsky, Max Goldstein and Jonah Furman, Appellants.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Landlord and tenant — liability of landlord for injuries to guest' of tenant caused by plaster falling from ceiling — evidence — insufficiency of.
    Where the roof of a tenement house is under the control of a landlord he. is liable for injuries to a guest of the tenant of the
    ' upper floor caused by plaster falling from the ceiling because of defects in the roof which allowed rain to come through and of which defects the landlord had notice.
    Evidence on behalf of plaintiff as to the existence of defects in the roof, considered, and held insufficient.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of plaintiff.
    David P. Goldstein, for appellants.
    Nathaniel Levy, for respondent.
   Guy, J.

Action to recover damages for personal injuries alleged to have been sustained by the plaintiff while a guest of one Goldman, defendants’ tenant on top floor of premises leased by defendant's.

The plaintiff testified that while sitting at the dining-room table in the Goldman apartment a large quantity of plaster from the ceiling fell on top of his head, causing the injuries complained of; and it was claimed that the plaster fell because of the existence of defects in the roof, of which the defendants had notice, which allowed the rain to come through the ceiling of the demised premises.

It appears that the house in question was a tenement house, the roof of-which was under the control of the defendants, the landlords; so that if the accident was caused by a defect in the roof of which the landlords had notice they would be liable to respond for damages to the guest of their tenant. Frank v. Simon, 109 App. Div. 38.

As to the existence of defects in the roof causing the injury the plaintiff’s evidence was unsatisfactory. Goldman, the tenant, testified that about five days before the accident he told the defendant Bochelsky to fix the roof so that the rain should not come into the house; that the witness was afraid the ceiling would kill somebody, and told Bochelsky he should fix the roof; that the water came in when it rained; that he took a dish and put it down when it was raining, and that Bochelsky and his wife used to come in and sweep the water off the floor. No other witness gave testimony tending to show any defect in the roof.

It was testified on behalf of the defendants that no plaster fell from the ceiling; that the plaintiff was struck by some plaster which fell from the wall between the top of the door and the ceiling; that rain did not leak into the room; that defendants were not notified of any such leaking; and one Albert, a roofer, swore that about eight months before the accident hfe put a new roof over the entire building, which roof consisted of tin, paper and tar, and it was impossible for rain to leak through the roof.

Doubtless it is permissible to infer that if rain came through the ceiling of Goldman’s flat it was because the roof was in a defective condition, and that the rain caused the plaster on the ceiling to become loose and fall. But apart from such inference there is no evidence of any defect in the roof, or that such defect caused the plaster from the ceiling to fall and strike the plaintiff, and as against the positive testimony given by the roofer this inference is not sufficient to support the judgment; for if the defect was one in the ceiling itself, and having no connection with the roof, the defendants would not be liable. Schick v. Fleischhauer, 26 App. Div. 210.

In the Frank case, supra, the plaintiff proved that the roof was in a very bad condition, and the court said (p. 41): “ The jury would have been warranted in finding that the only defect in the ceiling was caused by the water which came through the roof; that the ceiling would not have fallen but for the neglect of the landlord to repair the roof; that the roof was in such a bad state of repair that water came through on the occasion of every rain storm; that the defendant had actual as well as constructive notice of these facts and had notice of the dangerous condition of the ceiling caused by the roof a sufficient time before the accident to have enabled her in the exercise of reasonable care to repair the roof. Negligence on the part of the defendant could fairly be inferred from this evidence.” See also Lichtig v. Poundt, 23 Misc. Rep. 632.

Bijur and Pendleton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  