
    MARY A. RYAN, Plaintiff and Appellant, v. PETER M. WILSON, Defendant and Respondent.
    Before Sedgwick and Van Vorst, JJ.
    
      Decided May 16, 1879.
    Negligence.—Landlobd and tenant.
    In this'case, the plaintiff, in the course of her employment, was injured by a revolving upright shaft upon defendant’s premises, in a portion of the same not under his control, but leased, with the steam power which drove said shaft, to a tenant, at a specified rent, by which said tenant the plaintiff was at the time employed. For the damages resulting from said injuries the plaintiff sought to charge defendant, upon the ground that he did “ negligently and wrongfully leave said revolving shaft uncovered, uninclosed, and unprotected.”
    
      Held, that the shaft in question was not dangerous in itself or in its working; the opportunity for damage would arise only in case a person should come in contact with, and be caught by it (Loop v. Litchfield, 42 N. Y. 358).
    The defendant took no part, actually or by legal construction, in the tenant’s omission to guard the shaft, he having parted with the possession and control of the floor upon which the accident occurred, without stipulating for a continuance of the conditions which would render the occurrence of the accident possible or probable; nor was it negligence on his part to leave the placing of the guard to the tenant, a person as competent to attend to it as himself, and whose interest and duty would impel him to do it.
    Appeal from judgment that plaintiff’s complaint be dismissed.
    The action was for damages from defendant’s negligence. The complaint alleged that defendant was the owner of a certain building ; that the fourth floor of the building was occupied as a laundry by one George Little, as tenant of defendant; that the defendant was in possession of the other parts of the building ; that the said building was “negligently provided by said defendant with steam power, inasmuch as a certain revolving shaft, which was incidental to the supply of the said steam power in said building, ran through all the floors thereof, and extended through the fourth floor as aforesaid; that the defendant, well knowing the premises, and while the owner and occupant of said building as aforesaid, did, on the first day of December, 1875, negligently and wrongfully leave said revolving shaft uncovered, uninclosed, and .unprotected, of which the defendant had due notice, whereby the plaintiff, who was then lawfully in said building, being in the employ of said George Little, on said fourth floor, and in the pursuit of her occupation in said employment, then and there necessarily and carefully passing along said fourth story, was caught up, entangled and drawn round by said revolving shaft, whereby she was maimed, bruised, wounded, and received great bodily damage.”
    On the trial the judge stopped the giving of evidence, when, by the plaintiff’s case, it appeared that the fourth floor, on which the accident occurred, was in possession of the tenant of defendant, as stated in the complaint, and held that the defendant was not liable for the consequences of leaving the upright shaft uninclosed.
    
      Tremaine & Tyler, for appellant.
    
      Ira D. Warren, for respondent.
   By the Court.—Sedgwick, J.

The revolving upright shaft was not dangerous in itself or in its working. (Loop v. Litchfield, 42 N. Y. 358). The opportunity for damage would arise only if a person should come in contact with it, and be caught by it. And the complaint states the negligence, which caused the damage, to have been that the defendant did ‘ ‘ negligently and wrongfully leave said revolving shaft uncovered, uninclosed and unprotected.” Such being the omission and the cause of action, was the defendant responsible for it %

At the time of the accident the defendant had not any control of the floor on which must be placed any fence or guard about the shaft. He received rent for the premises, and for the power which moved the shaft, and at the time was furnishing that power. For so much he was responsible. As has been said, this was not dangerous in itself. His leasing and receiving rent did not involve a request by him, or a claim or an affirmance, that his tenant should not guard the shaft. The tenant had the right and actual power to guard it. The landlord, after parting with the possession and control of the premises, did not stipulate for or agree to continue or affirm that condition of things which constituted the alleged negligence. It is not the case of a landlord receiving rent for a thing which is a nuisance, e. g., a wall obstructing an ancient light, and which the tenant’s obligation prevents his taking down; nor the case of a defendant, who, in his conveyance of land, covenants that the grantee shall have the enjoyment of a right to set back water on another’s land. In both these cases there is an actual complicity in the wrong. In the present case, the landlord has not, by his lease, or by any act, claimed that the tenant should omit to make sufficient- guard, or promised to maintain the tenant’s omission. The tenant’s power is the same in this regard as if there had been an absolute conveyance of the property without covenants. It cannot be justly said that he took any part, actually or by legal construction, in the tenant’s omission to guard the shaft, he having parted with possession and control of the premises.

Ñor do I think that the defendant was negligent in renting and parting with the floor, without having placed a fence around the shaft. The negligence, if any, would consist in not supposing or not entertaining the notion that the tenant might not, or would not, sufficiently protect his servants. The fence would be a slight and inexpensive matter, and should properly be devised to meet the exigencies of the defendant’s business. His arrangements might dispense safely with the guard. - It was not negligence to leave the placing of the guard to a person as competent as the landlord to do it, and whose interest and duty would impel him to do it. The judgment should be affirmed, with costs.

Van Vorst, J., concurred.  