Opinion
December, 1913.
Present — Jenks, P.J., Thomas, Carr, Rich and Putnam, JJ.
Jankelson received a lease of the premises in January, 1911, and sublet them in the following April, during which time it was not the season to use them. In demising them he made due provision for such repairs as would make them fit for use by the public, and the evidence preponderatingly shows that the assignees of the lease did use due initial care to put them in reasonably safe condition. Hence the lessor is protected by the prudence of the tenant, on which he relied. Although the Jankelson Realty Company primarily used proper care, it may be that the jury could infer that there was negligence during the summer of 1911 in failing to discover the alleged hidden but probably increasing weakness of the broken girder or spile, or both, while the same was under the burden of the people using the walk. It would seem that some precursory indications of weakness would appear before the collapse of the walk came. The judgment and order should be reversed and the complaint dismissed as to Samuel Jankelson, without costs, and affirmed as to the Jankelson Realty Company, with costs.
Judgment and order reversed and complaint dismissed as to Samuel Jankelson, without costs, and unanimously affirmed as to the Jankelson Realty Company, with costs.