Opinion
November 4, 1938.
Present — Hagarty, Davis, Johnston, Taylor and Close, JJ.
In an action by wife to recover for personal injuries and her husband for loss of services and medical expense alleged to have been caused by hot tar falling on plaintiff-wife's hands when she was reaching out of her apartment window to take in her laundry, judgments were recovered against both the landlord and the independent contractor performing certain work for the landlord. The landlord appeals. Judgment unanimously affirmed, with costs. The work to be done was inherently dangerous. While the court made no specific finding that the hot tar drained down through a broken leader directly over the window where the plaintiff was taking in her laundry, such a finding may be implied as the other sources of the falling tar were eliminated, and it is a reasonable assumption that it drained from the roof into the box and from thence fell upon the plaintiff because of the broken leader. The leader had been in this condition for some months with the knowledge of the landlord. It should have foreseen that hot tar might drain through this broken leader and cause injury to a tenant using a clothes line underneath. It was its duty to keep its premises in a reasonably safe condition. It could not avoid this duty of a personal character by delegating the work to an independent contractor. ( Paltey v. Egan, 200 N.Y. 83; Russo v. Watson, 249 App. Div. 782.)