Obendorfer v. Hart , 145 N.Y.S. 50 ( 1913 )

SEABURY, J.

Plaintiff sued for rent, and the defendant pleaded a counterclaim for damages caused by the alleged negligence of the plaintiff in failing to keep certain pipes in repair. At the close of the case the court dismissed the counterclaim.

The evidence offered by the defendant as to the defective condition of the pipes and the knowledge of the janitor and superintendent of this defective condition was sufficient, if the court believed this evidence to be true, to charge the landlord with notice of the defective condition of the pipes. The pipes were under the control of the landlord, who, after he received notice of the defects in them, had them repaired; but the evidence shows that the repairs were not adequate. The fact that repairs had been made was a circumstance relevant upon the issue of negligence; but it did not conclusively establish that the plaintiff was free from negligence. The issue raised by the counterclaim should have been considered upon the merits.

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