
    Hannah Schwartz, Respondent, v. William H. Apple, Appellant.
    (City Court of New York, General Term,
    October, 1897.)
    Landlord and tenant — Breach of contract — Negligence — Ball of a ceiling in the sleeping apartment of a tenant in a tenement-house — Contributory negligence of tenant.
    A landlord who has not covenanted to make repairs is not liable to-a tenant, as for a breach of contract, for injuries which she received from the fall of the ceiling in a sleeping apartment which was under her exclusive control; and where the tenant remains in occupation, to her personal injury, after knowledge of the defect, after complaint made to the agent of the premises (who reassures her as to the danger and promises to have the ceiling fixed), and after her subsequent refusal to pay him rent because of the danger, her contributory negligence bars her right to recover of the landlord damages for -her injuries, under allegations that he has been negligent.
    
      . Appeal from a judgment in favor of plaintiff entered upon a verdict, and from an order denying a motion for a new trial. .
    Nadal, Smyth, Carrere & Trafford, for appellant.
    E. Rosenthal (Roger Foster, of counsel), for respondent.
   Conlan, J.

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial* ,

In this case, the plaintiff sued for damages caused by the fall of a ceiling in a tenement-house, owned by the defendant, in a sleep-, ing apartment occupied by her with her family.

The complaint sets up a cause of action in both contract and tort, alleging that the fall of the ceiling was a breach of covenant made with her by the defendant, and that the accident was due to hisnegligence. The facts sufficiently appear in the opinion

Opr attention is particularly called by the respondent to the case of Dollard v. Roberts, 130 N. Y. 269, but- there was an element in that case which is not found in the case at bar.

In the ease cited, recovery seems 'to have been based upon the fact that the accident Was occasioned by the falling of a ceiling in one of the public halls' of the building, which was common to use as an avenue of approach to and departure from their several apartments. Here there was an implied covenant on the part of the landlord to repair the halls under his immediate charge and entirely within his control, no portion thereof being the subject of lease-to any of the occupants of the building,1 and the liability of the landlord for the accident, under the circumstances, was complete,. and "he could not escape the consequences.

As was said in the course of the opinion delivered: This was her -only passage-way into the street, and from it in going to- the apartment /in which she dwelt;” and as was said in. Palmer v. Dearing, 93 N. Y. 11, it would be an extremely harsh rule which should require her, who was called so often to pass this place, to have kept her mind invariably fixed upon its character, and to make' her responsible for an omission to exercise incessant vigilance in passing it, but with the case at bar the situation is somewhat different.

. Here we have apartments under the exclusive control of the " tenant, and with no covenant on the part of the landlord, express or implied, Other than what might be inferred from the existence of the defect, which, it is claimed, was communicated to the agent, and which he is said to have declared was not an element of danger.

We are not unmindful of the rule of law that knowledge to the agent is knowledge of the principal. The. plaintiff’s situation is, however — and even in the light of the rule which may be said to "be applicable to cases of this kind — in many respects peculiar. She alleges that she was in constant fear of the ceiling coming down, and it seems that this fear had taken possession of her mind so that, as she expresses it in so many words, she was afraid to go to bed at night, having in mind the consequences of the fall of the ceiling, which was directly over the place she .slept.

She undertakes* to relieve herself of the consequences* and from liability by saying she told the agent, and he replied that there was no danger, and it would be fixed. She does not, in anyway, appear to, have avoided the danger or its consequences by changing her sleeping place to some other portion of her apartments, but in the very face of what she apprehended was a very threatening source of danger to herself, she proceeds in the occupancy of this same-sleeping apartment, and must be said, even in the face of the declaration of the agent that there was no danger and it would be fixed, to have herself invited the consequences.

The words of the agent do not appear to have been assuring to her to the extent of removing the fear from her. mind, or to have impressed her with any confidence in their truth when uttered. It is as though she said, “ I know the agent says there is no danger, but I am still afraid;” and if that were her condition of mind then she was not free from fault in her continued occupancy of the bed in the position in which it was placed.

She even declined to pay the rent in the following language, after the agent’s declaration of safety: “Mr Ealk, you shall know I cannot give you any rent, as I think the floor falls.” In her own plain words, that are full of meaning, she thus explains the whole situation; fear of danger to herself was so great that she withheld the rent, even after the agent, had undertaken to insure her of her safety. * How, therefore, can she be said to have relied upon his statements that there was no danger?

It seems quite clear that the reasoning in the case of Dollard v. Roberts does not apply here. The view here presented of that case appears to find favor in the case of Peil v. Reinhart, 127 N. Y. 381, where the complaint was for a defective stairway, and the court said:' “ It could not properly be held as matter ,of law that the plaintiff was guilty of contributory negligence,- and, therefore, the motion for a nonsuit was properly denied.”

. The question presented would have been quite different if the staircase had been part of the demised premises to the plaintiff; but the- case is made clear against the plaintiff’s right to recover when we consider the reasoning in the following cases; which, we think, are authorities in line with our views of the. case of Dollard v. Roberts, supra.

. In -Loring v. Clark, 2 City Court Rep. 252, Mr.' Justice Mc-Adáni, -in deciding for the. landlord, uses the following language:

“ -The facts which charge negligence upon the landlord generally impute knowledge of the danger to the tenant in actual use of- the premises, who, in consequence, becomes chargeable with contributory negligence for remaining in a place of known danger, when his plain duty is to avoid it; ” and the late Mr. Justice Sedgwick, in-his opinion in the case of Kabus v. Frost, 50 N. Y. Supr. Ct. 72, where he says of the general rules that pertain to a right for damages from .the negligence of another:

“ It is apparent that the plaintiff knew, whatever there was. of threatened danger in the state of the ceiling and voluntarily incurred the risks.” . .

Entertaining the views above expressed,' we do not think it necessary to discuss any of -the other- questions presented by the" record, and'are of the opinion that the judgment should be reversed and-a new trial ordered,- -with -costs to the appellant to abide the event.

Schuchman and Fitzsimons, JJ., concur.

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