
    JOHANNA DONOHUE, Respondent, v. SUSAN R KENDALL, et al., Appellants.
    
      Decided June 16, 1884.
    
      Landlord and tenant—tenement houses—liability of executors in control of.— Pleading.—Laws 1883, chap. 410, § 653.
    It is the duty of the landlord of a tenement house to keep in good repair the stairways, etc., intended for common use, and he is liable to his tenants, as well as to strangers lawfully on the premises, for damages caused by neglect of this obligation.
    Executors, who, as such, are in possession and control of such premises, are under a like obligation, which maybe enforced against, them personally, even though under the will they have no right to make repairs at the expense of the estate.
    The provisions of Laws 1883, chap. 410, § 653, establish the personal liability of executors in possession and control of tenement houses, for damages caused by defective condition of stairways. (Truax, J.)
    Where the title of the action contains after the names of the defendants the words “executors, etc.,” and the complaint states the former ownership of the premises by the testator, the appointment of defendants as executors, t>hat, as such, they went into possession and control; that “the defendants” were guilty of negligence, etc., and finally demands judgment against “ the defendants,”—if the proof be sufficient, judgment is properly entered against defendants individually.
    Before Sedgwick, Ch. J., and Tbttax, J.
    Appeal by defendants from judgment entered on verdict of jury, and from order denying defendants’ motion for a new trial made upon the minutes.
    This action was brought to recover damages sustained by plaintiff in falling down a stairway leading to the cellar of a certain tenement house, in the city of New York, in which she lived.
    The title of the action in the summons and complaint was “ Johanna Donohue v. Susan R. Kendall, Elizabeth R. Upham, Caroline R. Kendall, and Daniel R. Kendall, executors of the last will and testament of Isaac C. Kendall, deceased.” The complaint alleged that at the time of his death the said Isaac C. Kendall was the owner and had possession of the premises; that he died, leaving a last will and testament wherein he appointed the defendants executors thereof; that on April 28, 1877, the defendants were appointed executors of said last will and testament and are acting as such ; that thereupon the defendants, as such executors, undertook the management and control of said premises, and still have possession and control of the same.
    It then alleged that “ the defendants ” did on May 20, 1882, negligently, carelessly, wrongfully and unlawfully leave said stairway and suffered the same to remain in such dangerous, unguaz’ded and rotten condition, that by means whez’eof the plaintiff fell and was injured. Judgment was demanded against 16 the said defendants.”
    ,. The answer denied only that the premises were in an unsafe condition, or improperly or insecurely constructed, or that defendants left the stairway in a dangerous and unsafe condition as alleged in the complaint.
    The action resulted in a verdict in favor of the plaintiff for $1,000, on which judgment was entered against the defendants individually for $1,107.97, damages and costs. From this judgment the defendants appeal.
    
      W. McDermott, for appellants.
    The judgment should not have been against defendants individually. It is not necessary to set out in the title of an action that defendants az’e sued in a representative capacity. The complaint may set out the representative character of the defendants to show that the action is brought to z’ecover a demand of the estate (Yates v. Hoffman, 5 Hun, 113 ; Sullivan v. Husson, 50 How. 475).
    The allegation in the complaint that the executors had possession and control of the premises does not show any authority or duty to make repairs. There was no proof on the trial of the will or its provisions.
    Where an executor is empowered merely to receive the rent and has no estate in the land he is not personally responsible for damages by reason of the defective construction or condition of the building (Rollins v. Mount, 4 Rob. 553).
    Executors having a naked power to sell real estate and not authorized to make repairs cannot charge the estate with the cost of repairs (Hopper v. Adee, 3 Duer, 235).
    
      Peter Mitchell, for respondent.
   By the Court.—Sedgwick, Ch. J.

The appellants object that the verdict and judgment were entered against the defendants personally, erroneously, inasmuch, as is claimed, the complaint made no charge against them personally but only as executors, etc., of Isaac C. Kendall. The title of the action contains after their names the word “ executors, etc.” This is no more than identifying them by description, and does not indicate that they are sued as executors. The complaint states that as executors they undertook the management and control of the premises where the accident happened, but it states that they, personally, without attending to their executorship, negligently did leave the stairway in a ruined condition, etc. Their duties as executors related to the persons interested in the estate, yet even to them there might be a personal liability. As to the plaintiff, whatever was the title or right of the defendants, they had an obligation to her, because as natural persons they were in control of the premises and managed them, and were liable for any negligence on their part.

The answer, by not denying, admitted that the defendants had possession and control of the premises. It is to be observed that this amounts to an admission of joint possession and control, which is the foundation of a joint obligation to use ordinary care as to the premises.

The plaintiff was a tenant of some rooms in the upper part of the house, with the right to use a part of the cellar. Access to this cellar was to be had by a stairway leading down to the cellar. The plaintiff was going down the stairs, when she fell and was damaged, because one of the steps was gone. I think the circumstances that were not disputed, justified an inference that the plaintiff was either the tenant of the defendants, or of their testator, and if this were not correct, the defendants should prove the exceptional state of facts. In any condition of the facts as to this, it seems to me, that the defendants owed a duty to the plaintiff, who was rightfully using the stairway, that as part of the house was in their possession and control, not to allow it to become dangerous. It is supposed that. as executors they may have had no power to repair. It is conceivable that they had no such power at the expense of the estate. The presumption is otherwise. They had such a power at their own expense. They were not compelled to go into control of the property, but if they do so, they must fulfill duties and responsibilities that are grounded upon the fact of the power of management.

It is also argued that as tenant the plaintiff took the risks of the actual condition of the stairway. That if the defendants were ’ her landlord, they were not bound to repair it, during her tenancy. This might be, if the stairway had been part of the premises that had been let to the plaintiff. It was not. She had but a right of passage over it, as had the members of the other nine families in the building. It is not to be presumed that the arrangement intended that she or the others should keep the stairway in repair. The implication from the circumstances, is that it should be kept safe for them.

It was argued again, that the testimony showed that the plaintiff was guilty of contributory negligence. This question was properly left to the jury. The evidence did not incontrovertibly show that the plaintiff knew either that the step on which she said she intended to place her foot was gone or was likely to be found to be gone. The jury was at liberty to find that the plaintiff had been warned only that there was a loose step over which she might safely go if she went with care. No information necessarily was a warning, that she must expect to find a step gone.

Judgment affirmed and order affirmed with costs.

Truax, J.

[Concurring.] The statute (Laws 1867, chap. 908, § 4; Laws 1882, chap. 410, § 652), placed upon defendants the duty of keeping the stairs in good repair. This duty they failed to perform. For this reason, I concur.  