Wagner v. Welling

FREEDMAN, P. J.

The sole question to be determined upon this appeal is whether the defendant or some one else was responsible, as a matter of law, for the negligence resulting in the accident, and for which negligence this action was brought. The verdict of the jury must be taken as resolving all the questions of fact in favor of the plaintiff, there being on each point of dispute some evidence in support of the plaintiff’s version. The plaintiff was injured by the fall of what is described as a “sidewalk elevator,” running from the street to the basement. The defendant was sued as owner of the building. Her liability was measured by that of her grantor, who conveyed the premises to her subject- to the lease theretofore made to plaintiff’s employers of the first floor and basement of the premises in question. Plaintiff’s employers Sohmer & Co. were engaged in the piano business, and the accident resulted while the plaintiff, with two others, was lowering a piano from the street or first floor to the basement. While this elevator was primarily installed for the sole and particular, use of Sohmer & Co., they being the first tenants of the building, there is some evidence in the record showing that it was also used by the owner for the general purposes of the building, to wit, the removal of ashes. The lease from the original owner to Sohmer & Co. included the obligation on the part of the lessor to furnish “steam heat and elevator service.” It is entirely clear from the record, as well as from the value of the letting, that it was not contemplated, and that Sohmer & Co. had no occasion, to use any elevator in this building, other than this sidewalk elevator. Their warerooms were on the floor level with the street, and therefore elevator service for the conveyance of passengers was not required by them. The obligation on the part of the lessor was therefore to furnish the “service” necessary for the sidewalk elevator. The consequence of any negligent management of that service rested primarily upon the landlord. The defendant seeks to be absolved from this liability by showing a contract made by the original lessor, and adopted and ratified by her, whereby the heat and electricity of the building was furnished by a third party. The theory of an independent contractor cannot, however, be invoked in this case. If the lessor was bound by the terms of the lease to provide the necessary elevator service, he cannot relieve himself from liability for negligent performance by delegating the duty. O’Rourke v. Feist, 42 App. Div. 136, 59 N. Y. Supp. 157.

The covenant in the lease that the lessee should make repairs does not extend to the elevator, in view of the fact that by the terms of the letting the landlord had to furnish elevator service, that the control thereof was with him, and that the use thereof was partly for his own purposes. The evidence shows that such repairs as were actually made had always been made by the engineer or the employés of the contractor employed by the landlord. The judgment should be affirmed.

Judgment affirmed, with costs.

GILDERSLEEVE, J., concurs.