
    COURT OF APPEALS.
    Mary Ann Ryan agt. Peter M. Wilson.
    
      Negligence — Landlord and tenant—Liability of landlord who leases premises with the machinery contained therein, for an injury received by an employe of the tenant in coming in contact with the same.
    
    The defendant was the owner of a building and leased it with the machinery it contained to one Little. The latter employed the plaintiff, who came in contact with the machinery and was injured:
    
      Held, that the tenant took the premises as they were, and that the plaintiff going into his service at that place, took the risks of the situation. If any railings or other safeguards were required, it was the duty of the tenant who used the machinery to construct them.
    
      Held, further, that the tenant and not the landlord, was responsible for the injury. The respective duties owing by landlord and tenant to third persons considered.
    Decided, January, 1882.
    
      Appeal from a judgment of the general term of the New York superior court, affirming a judgment, entered upon a verdict in favor of the defendant.
    
      Tremain dk Tyler, for appellant.
    
      Ira D. Wa/rrm, for respondent.
   Danforth, J.

The case seems a very clear one for the defendant. Be owned the building in which the plaintiff was injured, hut the room where the accident occurred had been rented to one Little, who was then in its possession as tenant. The plaintiff was in Little’s employ. Steam power and the use of machinery were furnished by the defendant, but the plaintiff was not harmed while using it, or by its insufficiency for the purpose of which it was designed. She came in contact with it and was overcome. She did not approach it, or even come upon the premises at the express or implied invitation of the defendant, and therefore many of the numerous cases referred to by the learned counsel for the appellant have no application. It is said, however, “ that for the purpose for which this floor was to be used, and which the defendant knew it was to be used, and for which he received compensation for use of it, the defendant did not use the ordinary means of avoiding danger from the shaft to those engaged upon or visiting the premises,” but it comes to this, that he did not surround the shaft with a guard, or prevent access to it by a railing or other obstacle. Upon what principle was he hound to do so? Because it is said a man must take care that his property is so used or managed that other persons are not injured.” This maxim does not touch the case. The premises were delivered to the tenant in a condition to serve the use for which they were hired, and in this respect they did not afterwards fail. The shaft kept its place, performing its revolutions, and in no respect proved inadequate to the service required of it. If alterations were required to fit the premises for their safe or convenient occupation by the tenant or his employes, it was his duty and not that of the landlord to make them. One might fall from a window or be set on fire at the grate, when by bars at one end or a fender at the other the accident would not have happened; but it would hardly be claimed that the landlord could be made responsible for their absence. The tenant took the premises as they were, and the plaintiff going into his service at that place took the risks of the situation. The landlord could not be required to change the structure of the premises, except upon some new agreement, nor be made to respond in damages to an employe of the tenant for an injury which but for that relation would not have happened (Mellen agt. Morrill, 124 Mass., 545). I have examined the cases referred to by the appellant’s counsel in his interesting argument, but find none which raise any doubt as to the correctness of the rulings in the court below. The one most insisted upon is Swords agt. Edgar (59 N. Y., 28), but in that a rule is declared decisive of the present case, and distinguishing it from the one then before us. It there repeated that “ a lessor of premises ml per se a nuisance, but which became so only by the manner in which they are used by the lessee, is not liable therefor.” If there is fault on the part of anyone save the plaintiff, in this case, the rule applies here. It was thought not to apply in the case cited, because the pier then in question was so defective and insecure when leased that the subsequent injury received in the proper use of it, as if sound, was consequent upon its original condition. Robins agt. James (15 J. Scott, 221; 109 Eng. C. L. Reports), goes further and meets the position of the plaintiff, that the defendant is liable because the premises were unsafe when let. There the court held that a landlord who lets a house in a dangerous state is not liable to the tenants, customers or guests for accidents happening during the term. Whether this is a sound rule for all cases may be doubted, but to danger arising from the arrangement of the premises in question, to employes of the tenant, it may well apply. • It is not needful to pursue the inquiry further, for we concur with the courts below in the conclusion that the evidence, whether given or offered, shows no misfeasance or nonfeasance on the part of the defendant, nor any violation of duty toward the plaintiff.

The judgment in his favor was, therefore, right and should be affirmed.  