San Filippo v. American Bill Posting Co.

Full title: MARY SAN FILIPPO, Appellant, v . AMERICAN BILL POSTING COMPANY, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 20, 1906

112 App. Div. 395 (N.Y. App. Div. 1906)

Opinion

April 20, 1906.

Henry A. Powell, for the appellant.

Clarence B. Campbell, for the respondent.

GAYNOR, J.:

The case turned on whether it was controlled by the decision in Reynolds v. Van Beuren ( 155 N.Y. 120), and that question depended on the written lease to the defendant, and the fact of the defendant's possession and use thereunder. I do not think it was. The prevailing opinion in that case points out that it would have been different if the defendant "maintained" the signboard. In this case the defendant did maintain it. It was given full possession and control of it, and agreed to maintain it. That was the written lease, the words thereof being that the owner of the building leased to the defendant "the right to maintain the signs now on the roof," and the defendant agreed "to take the premises on the terms as above set forth." This is very different to having only a license to paste bills on the signboard, as was the Reynolds case. The sign was imminently dangerous if not so maintained that it could not fall. The defendant having continuous possession and use of it under an agreement that it would maintain it, it had a duty to use reasonable care to maintain it there so that it would not fall. The plaintiff does not recover under the defendant's breach of contract with the owner of the building to maintain the sign, but under its breach of duty to every one to safely maintain it, it being in its possession and control, and imminently dangerous. This is a very different case to that of a mechanic called in to make or repair. He has no continuous possession, use and control.

The decision in the Reynolds case is, I suppose, understood to be one not to be extended, and no one is bound by certain illustrations in the opinion. Is it really so that an advertising company which hangs a sign overhead in a street car in so defective a manner that it is imminently dangerous and falls on the head of a passenger is not liable therefor to the injured person, as the opinion says? If one furnish to another a thing which is so defective as to be imminently dangerous, he is liable for a breach of his general duty to others in connection therewith, outside of his mere contract obligations ( Devlin v. Smith, 89 N.Y. 470); and the same rule must with the very same reason be applied to a case like the present one. The defendant had in his possession, use and control this signboard, which was imminently dangerous if not kept securely fastened, and which it had undertaken to maintain there. This carried with it a general duty to use proper care to see that the signboard did not fall from the roof upon neighbors, or upon passersby in the street. That duty was not contractual, but sprung into life by reason of the contract.

The judgment should be reversed, and the plaintiff should be given judgment on the verdict by the trial court.

HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.

Judgment and order reversed, with costs, and judgment given to the plaintiff upon the verdict, with costs.