Goetchius v. Gale , 108 N.Y.S. 1079 ( 1907 )

Bischoff, J.

The action is for a negligent injury to the plaintiff by reason of the fall of a portion of the ceiling in an apartment occupied by her in a building’ described as “ an apartment or tenement house ” maintained by the defendant. It is not alleged that this part of the house was within the landlord’s control; and, in the absence of such an averment, the mere failure to repair a portion of the demised premises gives no right of action for a personal injury due to the breach of an agreement to repair. Schick v. Fleischhauer, 26 App. Div. 210; Golob v. Pasinsky, 178 N. Y. 458.

The suggestion of plaintiff’s counsel that a duty was imposed by the Tenement-House" Act (Laws of 1901, chap. 334, §§ 102, 103, 105), upon the landlord, to keep the ceilings safe and in repair, is in no way borne out by the statute which at best requires that the ceilings be kept in a clean and sanitary condition. To comply with the statute, no right of entry was necessarily reserved to the landlord for the purpose of making repairs, nor did he have control of the demised premises for this purpose. Moreover, the premises are described in the complaint as “ an apartment or tenement house;” and no words of description are used such as would disclose the application of the Tenement-House Act to this particular property.

The demurrer is, therefore, sustained, with costs, with leave to the plaintiff to amend within twenty days upon payment of costs.

Demurrer sustained, with costs, with leave to plaintiff to amend within twenty days upon payment of costs.