Simpson v. Eppinger , 150 N.Y.S. 473 ( 1914 )

PAGE, J.

This is an action against a landlord to recover damages for injury to a servant of his tenant, caused by falling a ceiling in the apartment of the tenant. The complaint alleges in paragraph fourth:

“That the defendant, prior to the 19th day of August, 1911, caused a hole to be made in the ceiling of the apartment occupied by plaintiff’s employer, for the purpose of doing some repair work, which rendered said apartment dangerous to the life and limb of its occupants. * * * ”

And in paragraph fifth:

“That on or about the 19th day of August, 1911, while said plaintiff was in the kitchen of the apartment aforesaid, suddenly, without any fault on her part, and wholly and solely through the negligence o£ the defendant, his agents, servants, and employes, a portion of the said ceiling fell down and upon plaintiff, severely injuring her.”

[1,2] It is clear, as a matter of law, that the defendant would not be liable for injury to the plaintiff by reason of the falling of the ceiling, in the absence of allegation and proof that the defective ceiling was a nuisance created by the defendant, or that it was under his control in such a manner as to give rise to a duty in the landlord to keep it in repair and in safe condition. The plaintiff recognizes this rule of law, and relies upon “active and culpable negligence on the part of the defendant in entering the apartment and making a hole in the ceiling.” I am of the opinion, however, that the facts alleged in the complaint do not sufficiently connect the alleged falling of the ceiling with the hole created by the defendant to charge the defendant with liability for the injury. It is alleged that the ceiling in the kitchen of the apartment of plaintiff’s employer fell, but it is not alleged that the hole was in the ceiling of the kitchen, nor that the falling of the ceiling was caused by the hole. While every necessary inference should be indulged in to support the complaint, we may not infer facts which are not stated and which may or may not be true.

The order appealed from should be reversed, with $10 costs and disbursements, and the defendant’s motion for judgment on the pleading granted, with $10 costs, with leave to the plaintiff to amend his complaint within six days after service upon his attorney of notice of entry of an order herein upon payment of said costs. All concur.