Opinion
November, 1895.
P.J. O'Beirne, for appellant.
F.R. Crumbie, for respondent.
If there was any omission on the part of the city to have the accumulation of snow and ice on the sidewalks removed, by which omission or negligence an accident occurred, this defendant cannot be held responsible; nor the fact of a city ordinance requiring the owner to do certain things in regard to cleaning snow and ice is not of itself sufficient to give a cause of action to a party injured by an act in violation of its terms. It is a police regulation and does not add to or take from the liability of the party. Knupfle v. Ice Co., 84 N.Y. 488; Moore v. Gadsden, 93 id. 12, 17. The plaintiff, however, contends that the passageway or walk from the sidewalk to the house is a part of the lot or premises known as No. 334 West Sixty-sixth street. This appears to be correct according to the measurements testified to by Melvin G. Pallister, one of the plaintiff's witnesses; that it is the means of entering and reaching the premises, and is under the control and management of the defendant.
Mr. Crumbie was owner of this apartment house, renting only the apartments and reserving to himself and taking care of the hallways and this passageway to the sidewalk by a janitor, a Mr. Falconer. The tenants had no charge or control over hallways or passageways at all. The plaintiff was lawfully on the premises in the act of visiting one of the tenants, as she had the right to do. It seems to us that the rule to be applied to the evidence in this case is that when the owner of land expressly, or by implication, invites a person to come upon his land he cannot permit anything of the nature of a snare to exist or be maintained thereon which results in injury to the person who avails himself of the invitation and who, at the time, is exercising ordinary care, without being answerable for the consequences. We think the circumstances imposed a duty on the defendant to protect this passageway and see that no nuisance existed and the place was reasonably safe. Beck v. Carter, 68 N.Y. 291, 292; Murphy v. City of Brooklyn, 118 id. 579; O'Sullivan v. Norwood, 8 N.Y. St. Repr. 388.
DAVIS, P.J., in Henkel v. Muir, 31 Hun, 28, 29, says: "One of these uses was the right of ingress and egress of persons lawfully calling upon the tenants for business purposes, or as friends for social purposes. It is a correct rule of law to state that the same measure of liability for injuries sustained by negligence of the landlord extends to one socially visiting or calling upon a tenant as protects the tenant himself, because the use of the hall and staircase for the purpose of enjoying such visits and calls is by necessary implication (where not expressly provided for) within the reasonable intent of the demise of the rooms. Hence, the plaintiff in this case, in calling upon the tenant of the appellant, was within the scope of the protection against the landlord's negligence, and is entitled to the application of the same rules, if damnified by his negligence, which the tenant could invoke in his or her own behalf," and this is approved in Alperin v. Earle, 55 Hun, 211, 212; Rauth v. Davenport, 60 id. 70, 73. It is also necessary for the plaintiff, in order to recover, to show that the defendant had either actual or constructive notice of the existence of the nuisance complained of. There is some testimony that this condition existed from the day previous, and this was sufficient, under the circumstances, to go to the jury on the question of constructive notice to defendant, since the defendant owned the premises and controlled and managed the same through his janitor, who was living on the premises. We think the trial justice erred in dismissing the complaint, as there was enough to place the defendant on the defense.
Judgment is, therefore, reversed and new trial granted, with costs to the appellant to abide the event.
CONLAN, J., concurs.
Judgment reversed and new trial granted, with costs to appellant to abide event.