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MAUER V. EGAN. (Supreme Court, Special Term, New York County. March 1, 1920.) 1. Principal and agent Am 159 (2)-Agent not liable to third persons for non

feasance.

An agent, charged with duty of erecting a trapdoor in a sidewalk for the accommodation of the public, who negligently permitted a defective trapdoor to be erected, held guilty merely of nonfeasance, and not liable to

third persons injured by reason of the defect. 2. Municipal corporations 816 (3)-Complaint for allowing trapdoor to

remain open held insufficient.

Mere statement in a complaint that defendant personally and by his employés negligently allowed a trapdoor to remain open, without an allegation that the opening was wrongfully or unlawfully made or maintained, and without facts from which such construction or maintenance could be inferred, or that the trapdoor was in that part of the sidewalk traveled by the public, was insufficient to show a nuisance.

Action by one Mauer against one Egan. On motion by defendant for judgment on the pleadings. Motion granted, with leave to amend.

James Mahoney, of New York City, for plaintiff.
W. S. Sawyer, of New York City, for defendant.

DELEHANTY, J. [1] The complaint fails to state a cause of action against the defendant for negligence. The acts charged constitute non feasance, and not misfeasance; and while the agent may be liable to his principal for negligence, he is not answerable therefor to third parties. Their remedy is against the owner of the property. Van Antwerp v. Linton, 89 Hun, 417, 419, 35 N. Y. Supp. 318; Burns v. Pethcal, 75 Hun, 437, 442, 443, 27 N. Y. Supp. 499; Murray v. Usher, 117 N. Y. 542, 546, 547, 23 N. E. 564; Denny v. Manhattan Co., 2 Denio, 115.

[2] Neither are the essential allegations of an action for nuisance set forth in the complaint. The mere statement that the defendant personally and by his employés negligently allowed a trapdoor to remain open, without an allegation that the opening was wrongfully or unlawfully made or maintained, and without facts from which such construction or maintenance could be inferred, is insufficient. Furthermore, it does not appear that the trapdoor in question was in that part of the sidewalk traveled by the public. See Ennis v. Myers, 29 App. Div. 382, 384, 51 N. Y. Supp. 550; Hayes v. Brooklyn Heights R. R., 200 N. Y. 187, 93 N. E. 469; Porter v. Waring, 69 N. Y. 250, 253; Fairchild v. Leo, 149 App. Div. 31, 34, 133 N. Y. Supp. 572.

Motion for judgment on the pleadings granted, with $10 costs, with leave to amend within 10 days upon payment of said costs. Settle order on notice.

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(182 N.Y.S.)

MURRAY v, EISFELDT.

(Supreme Court, Special Tern, New York County. May 20, 1920.) 1. Landlord and tenant On 169 (3) --Pleading alleging negligent failure of

landlord to furnish fire escape insufficient.

A complaint in an action against a landlord for damages, alleging that the defendant failed to furnish sufficient or any fire escapes upon the said premises as required by ordinance, was insufficient, where it contained no description of the building in question; the ordinances not requiring the

placing of fire escapes upon all buildings, 2. Landlord and tenant Eww169 (3)—Pleading as to negligent maintenance of

defective skylight insufficient.

A complaint alleging that landlord negligently and unlawfully maintained and permitted a skylight and an exit to the roof to be in a defective, unsafe, and dangerous condition, so that the premises constituted a nuisance, and was a danger and menace to life, limb, and safety of those hav

ing occasion to use the same, was insufficient to state a cause of action. 3. Landlord and tenant Eww164 (1)—"Skylight,” under Tenement House Law,

not intended as a means of exit in case of fire.

Under Tenement House Law, $ 77, skylights are required only as the "means of light and ventilation,” and are not intended as a means of exit; a "skylight” not being a door, but a window, usually glazed, facing skyward.

Action by Robert Murray, an infant, by George F. Murray, Jr., his guardian ad litem, against May Irwin Éisfeldt. On motion by defendant to dismiss amended complaint. Motion granted, with leave to plaintiff to serve second amended complaint.

Holt & Gaillard, of New York City (Charles Capron Marsh, of New York City, of counsel), for the motion.

Randolph A. Gerard, of New York City, opposed.

GIEGERICH, J. [1] The defendant moves for judgment dismissing the amended complaint, on the ground that it does not state facts sufficient to constitute any cause of action. Three alleged causes of action are set forth in the amended complaint. For a first cause of action the complaint alleges that, at the time of the accident, the plaintiff resided with his parents, who occupied a furnished apartment in the premises in question as subtenants of the defendant; that the defendant failed to furnish sufficient, or any, fire escapes upon the said premises, as required by the Revised Code of Ordinances of the City of New York; that a fire occurred in said premises, and that the plaintiff was injured while endeavoring to escape from said fire through a skylight in the roof. In Rita Zalmani v. Eisfeldt, N. Y. Law Journal, February 15, 1919, the allegations of the complaint were identical in form with those in the present case so far as concerns the injuries alleged. Mr. Justice Philbin, in granting the defendant's motion for judgment on the pleadings, among other things, said:

“While it is true that this court will take judicial notice of city ordinances (Laws 1917, c. 382; Greater N. Y. Charter [Laws 1901, c. 466] 1556), that fact does not avail the plaintiff in this case. The ordinances do not require the

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placing of fire escapes upon all buildings, but only upon certain types. The complaint contains no description of the buildings. The allegation that derendant unlawfully failed to provide fire escapes, in the absence of such description, must be regarded as a conclusion of law not admitted by demurrer."

These views were subsequently followed by other justices, who granted the defendant's motions for judgment upon the pleadings on a complaint containing allegations similar to those set forth as a first cause of action. Cecelia Žalmani v. Eisfeldt, N. Y. Law Journal, June 21, 1919; Hale v. Same, Id., August 2, 1919; George F. Murray, Jr., v. Same, Id., September 10, 1919; Luella Murray v. Same, Id., October 28, 1919; Blalock v. Same, Id., November 6, 1919; George F., Murray, Jr., v. Same, Action No. 2, Id., January 10, 1920. I concur in the reasoning and conclusion reached by Mr. Justice Philbin in Rita Zalmani v. Eisfeldt, supra. Here, as in that case, the plaintiff has failed to plead any facts showing that the defendant was under any obligation whatever to provide fire escapes, and therefore the facts alleged in the first cause of action are insufficient.

[2, 3] For a second cause of action the amended complaint repeats all the allegations of the first cause of action, charging negligence, and then alleges as follows:

"Eleventh. That at the time of said fire, and for some time prior thereto, the defendant, her agents and servants, suffered and maintained the aforesaid premises in an unsafe and dangerous condition, and negligently and unlawfully suffered, maintained, and permitted the skylight and exit to the roof of said premises to be in a defective, unsafe, and dangerous condition, so that the said premises constituted a nuisance and was a danger and menace to the life, limb, and safety of those having occasion to use the same. That the injuries rēceived by the plaintiff were due to the negligence of the defendant, her agents and servants, and the maintenance of the nuisance aforesaid."

"Twelfth. That solely by reason of the defendant's negligence as aforesaid plaintiff received severe and serious burns and injuries to his body of a permanent nature."

The same facts are pleaded as the third cause of action for loss of personal property. It will be seen that the plaintiff in such alleged second and third cause of action attempts to set out a cause of action based on nuisance, and that he has attempted to do this by combining allegations charging negligence with those charging nuisance. As already stated, the amended complaint alleges that the plaintiff was injured while attempting to escape from the fire through a skylight in the roof. The amended complaint, so far as concerns the alleged second and third cause of action, contains no allegation that the skylight was intended to be used as a means of exit in case of fire, nor does it allege that the skylight was dangerous or unsafe to any one, except as a means of escape in the event of a fire. Furthermore, the amended complaint does not plead any statute or ordinance under which it was the duty of the defendant to furnish a skylight as a means of escape to the roof in case of fire, nor do I know of any such. It is well settled that the complaint must allege facts showing the existence of the obligation which the action seeks to assert against the landlord. City of Buffalo v. Holloway, 7 N. Y. 493, 498, 57 Am. Dec. 550; Fairchild v. Leo, 149 App. Div. 31, 34, 133 N. Y. Supp.

(182 N.Y.S.) 572; Pagnillo v. Mack Paving & Const. Co., 142 App. Div. 491, 494, 127 N. Y. Supp. 72; McGuinness v. Allison Realty Co., 46 Misc. Rep. 8, 9, 93 N. Y. Supp. 267. The amended complaint fails to conform to these requirements.

Moreover, it does not contain any description of the character of the building in question, and hence the case is not brought within the provisions of the Tenement House Law (Consol. Laws, c. 61). Even under the latter enactment skylights are required only as a "means of light and ventilation," with a minimum opening of 40 square inches (section 77), and hence are manifestly not intended by the statute as a means of exit. ' It is plain that such a skylight is not a door, but "a window, usually glazed, facing skyward." Standard Dictionary, p. 1682. The pleader may have had in mind the “scuttle” required by section 32 of the Tenement House Law; but no facts are pleaded to bring the case within those provisions, which apply only to tenement houses. Inasmuch as no facts are alleged in the amended complaint from which it may, even by fair intendment, be inferred to have been the duty of the defendant to provide fire escapes, the mere allegation in each of the three causes of action that it was the defendant's duty to do so, under the circumstances disclosed, is a conclusion of law, and as already shown, so also are the allegations of the second and third cause of action that the skylight was a nuisance. Ennis v. Myers, 29 App. Div. 382, 384, 385, 51 N. Y. Supp. 550; Mauer v. Egan, 182 N. Y. Supp. 180. In this view, the facts pleaded as a first, second and third cause of action are insufficient to constitute a cause of action, and consequently the motion for judgment dismissing the amended complaint should be granted.

Motion granted, with $10 costs, but with leave to the plaintiff to serve a second amended complaint within 20 days after service of a copy of the order to be entered hereon, with notice of entry thereof, and upon payment of such costs. Settle order on notice,

(191 App. Div. 153)

LAUT v. CITY OF ALBANY et al. (Supreme Court, Appellate Division, Third Department. May 14, 1920.) 1. Municipal corporations Eww818(11)-Evidence that, after automobile acci.

dent, crushed stone was spread over oil, held error.

Where plaintiff's automobile, after skidding on a street recently covered with oil placed thereon during the course of repairs, was struck by another car, which also skidded for the same reason, and plaintiff sued the city and also the oil company spreading the oil, admission of evidence by the superintendent that, on the day after the accident, he put crushed stone on top of the oil by orders of his superior, thinking it advisable to do

so, held error. 2. Trial 251 (2)—Instruction submitting issue of negligence not alleged

held improper.

Where plaintiff's automobile, after skidding on a street made slippery by oil spread thereon during repairs, was struck by another automobile, skidding for the same reason, an instruction submitting the question as to whether the use of oil was proper, stating that plaintiff claimed it was For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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improper, was erroneous, where negligence as to the use of improper ma

terials was not alleged in the complaint. 3. Municipal corporations C 822 (5)-Refusal to charge that company re

pairing street was independent contractor held error.

Where intiff's automobile, after skidding on a pavement made slippery by the use of oil, was struck by another automobile, skidding for the same reason, and plaintiff sued both the city and the company repairing the street, and such company was an independent contractor, and not an employé of the city, it was error to refuse to so charge.

John M. Kellogg, P. J.,' dissenting. Appeal from Albany County Court.

Action by Harry J. Laut against the City of Albany and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial granted.

Argued before JOHN M. KELLOGG, P. J., and WOODWARD, COCHRANE, HENRY T. KELLOGG, and KILEY, JJ.

Arthur L. Andrews, of Albany (John J. McManus, of Albany, of counsel), for appellant city of Albany.

Visscher, Whalen & Austin, of Albany, for appellant Standard Oil Co.

Henry J. Crawford, of Albany, for respondent.

KILEY, J. On the afternoon of July 30, 1918, the defendant the city of Albany, by some previous arrangement had with the defendant the Standard Oil Company, placed upon the macadam surface of one of its streets, known as the Southern Boulevard, oil, liquid tar, or road material, generally used for that purpose. This boulevard runs approximately north and south. The width is given from 50 to 80 feet. The macadam is 18 feet wide, laid down in the center of the boulevard. It was not lighted. Toward the northern end of this street and the macadam there is a slight curve for some little distance, and the surface slopes from the west toward the east. The oil or substance so put upon the street covered a space of about 100 feet in length and all of the macadam surface, except a strip of about 2 feet along the eastern edge: The plaintiff, between 8 and 9 o'clock in the evening of the afternoon of the day the repairing was done, approached this street from the north, going south. When he reached the curved and oiled macadam on the westerly side, his proper side to travel upon, his car commenced to slide. He put on the brakes, but that did not stop the car. It continued to skid or slide from the western side to the east, until it came to the dry eastern edge or dirt part of the surface. While plaintiff's car was standing where it had stopped, a car coming from the north toward the south slid or skidded in like manner as plaintiff's car had done, and collided with plaintiff's car, striking it in the rear and causing the damage complained of here. Plaintiff has sued the city and the Standard Oil Company. The negligence complained of is alleged in the complaint as follows:

"On information and belief, that on or about July 30, 1918, the defendants negligently and carelessly covered the entire surface of said boulevard with a

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes.

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