Opinion
April, 1904.
J. Mortimer Bell, for the appellant.
Stephen J. Stilwell, for the respondent.
The plaintiff's husband leased from the defendant an entire house in the city of Mount Vernon. The plaintiff resided with her husband in this dwelling. She brought this action to recover damages for injuries alleged to have been sustained by the breaking of the flooring of the stoop in front of the house, alleging that said flooring had been rotten and out of repair for more than a year, and that her injuries were caused by the carelessness and negligence of the defendant in refusing and neglecting to repair the dangerous and defective flooring aforesaid. Upon the trial plaintiff's husband testified that he called the defendant's attention to the condition of the stoop and that the defendant, before the plaintiff and her husband moved into the house, promised to repair and put in a whole new stoop. The gravamen of the plaintiff's cause of action was the defendant's failure to fulfill this promise to repair.
No action for negligence was maintainable on this basis, and the complaint ought to have been dismissed. Assuming the making of the alleged agreement to repair, the breach thereof did not confer upon the tenant or his wife any right of action based upon negligence. The relation between the parties to the agreement was purely contractual, and the violation of the contract by the landlord did not create any liability in tort. ( Schick v. Fleischhauer, 26 App. Div. 210 and cases there cited.)
The authorities relied upon by the respondent are readily distinguishable, most of them being cases in which the landlord had rented only a part of the building to the tenants therein, but had retained control over other parts, the law consequently imposing upon him the care thereof for the benefit of all the tenants.
The judgment should be reversed.
All concurred.
Judgment and order of the City Court of Mount Vernon reversed and new trial ordered, costs to abide the event.