Schanda v. Sulzberger

Williams, J.:

We think there was. not sufficient evidence for the jury as to the alleged. negligence of the defendant. There was no proof that it was the duty of the defendant to-keep the ceiling in repair. It in no way appears what the agreement between the parties was, under which the plaintiff occupied the room at -the time of the accident in March, 1894. For all that appears, it may have been the duty of-the plaintiff himself to keep the ceiling -in repair. It is said that two years before, when the ■ ceiling was injured by water coming through it from above, the defendant did repair it. That injury to the ceiling, howéver, came from the carelessness of the other tenants above, and was not an ordinary defect arising from the use of the premises. . It does not follow from that circumstance that the defendant was under' obligations to repair the defective condition of-the ceiling which caused the. plaintiff’s-injuries.

' There was no proof as to what did cause .the defective condition ■existing in 1894, whether it resulted from a.failure to make proper repairs to the ceiling in 1892, or from some other cause subsequently intervening. There was no proof that "the defendant had any knowledge or notice of any defective condition of the ceiling before the accident occurred. There was, in fact, an utter failure to prove any facts establishing negligence on the part of the defendant which caused the plaintiff’s injuries.

The complaint was properly dismissed and the judgment should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.