
    Peter Herder, App’lt, v. Theophilus J. Bloomer et al., Resp’ts.
    
      (New York Common Pleas, General Term,,
    
    
      Filed April 2, 1894.)
    
    Negligence—Breach oe contract.
    Under agreement to exercise due care in securing door of plaintiff’s loft, when making use of same for purposes of ingress and egress to his part of premises, defendant is liable for theft of plaintiff’s goods which resulted from his negligence in this respect.
    Appeal by the plaintiff from a judgment of dismissal rendered by the justice of the district court in the city of Hew York for the second judicial district.
    Action for damages to personal property by reason of negligence.
    
      S. S. Bennett, for app’lt.
   Bischoff, J.

The basis of the plaintiff’s cause of action is the negligence of the defendant in the performance of .a duty assumed by the latter under an agreement between the parties. This agreement, as alleged, was that the defendant should exercise due care in securing the door of the plaintiff’s loft, when making use of the same for the purposes of ingress and egress from a certain part of the premises reserved to the uses of such defendant. Apparently the agreement in question formed part of the mutual agreements between the parties in their relation rnspectively of tenant and landlord, and it would seem, also, that an injury to the plaintiff by the theft of his goods was a contingency naturally within the contemplation of the parties when making the agreement, therefore the defendant may be answerable in damages for this result of his negligence, when established. See Addison on Torts, Ch. 1, § 1, The justice, in holding that the plaintiff must prove collusion between the defendant and the thief, and in rejecting the offer of proof of the defendant’s negligence, obviously misconceived the nature of the action, and the resulting dismissal of the complaint was error which requires a reversal of the judgment. Judgment reversed and a new trial ordered with costs to appellant to abide the event. All concur.  