App. Div.]

Second Department, November, 1911.

The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

JENKS, P. J., BURR, THOMAS and WOODWARD, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

THE GRETSCH CORPORATION, Respondent, v. LOUIS BORGENICHT and HYMAN KORNREICH, Appellants.

Second Department, November 10, 1911.

Landlord and tenant-lease-provision for occupation before rent begins-heat and elevator service trial - erroneous exclusion of

evidence.

The lease of a loft on the fifth floor of a building provided that the lessor should furnish heat and elevator service; that the lessees should have possession of the premises for the purpose of installing their machinery on or before December 1, 1910; that no charge would be made for the use of the premises during December, 1910, and January, 1911, and that, if the lessor should be unable to deliver complete possession by December first, the tenants should be allowed to deduct rent for as many days as possession was withheld from the March rent. In an action to recover rent for March and April the answer alleged that through the landlord's failure to furnish heat and elevator service by December first defendants were unable to install their machinery. The court on the trial excluded all evidence offered by the defendants to show that heat and elevator service were necessary for the installation.

Held, that as the trial court excluded the evidence offered, it would be assumed on appeal that such facilities were necessary for the installation

of the machinery;

That the privilege to the tenants to enter upon the premises December first and install their machinery was more than a mere license and was

an essential part of the lease;

That a judgment in plaintiff's favor for the full rent reserved should be reversed, and a new trial granted.

APPEAL by the defendants, Louis Borgenicht and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 9th day of May, 1911.

Second Department, November, 1911.

[Vol. 147.

Simon Sultan, for the appellants.

M. V. McDonald, for the respondent.

THOMAS, J.:

The lease between the parties herein for a term beginning February 1, 1911, stipulated that the lessor should furnish heat and elevator service, and that the lessee "shall have possession of the demised premises for the purpose of installing their plant and machinery on or before December 1, 1910, and that no charge will be made for use and occupation of said premises for the month of December, 1910, and January, 1911," and that "in case the landlord is unable to deliver complete possession by December 1, as above provided in that case tenant shall be allowed to deduct rent for as many days as possession is withheld, after December 1st, to be deducted from March rent 1911." Two actions, brought severally to recover installments of rent for March and April, 1911, were tried together, and recoveries for the full rent reserved followed. The defense was that through the failure of the lessor "to deliver complete possession by December 1, as above provided," the plant and machinery could not be installed until a date in January. The heat and elevator service were not furnished for the purpose of the installation, and the only question is whether the lease required it. It should be assumed that these facilities were necessary for installation, as the court excluded all evidence in that regard. The lease was of the fourth and fifth floors for manufacturing purposes, and the machinery was to be installed in the fifth loft, and it may be that the elevators were necessary to raise them to their location, and it may not be beyond reasonable inference that in December some degree of warmth would be demanded by workmen. In any case the defendants would show that elevator and heat were needed. Hence the inquiry is, whether, if it be assumed that heat and elevator were needed for installation, the lease stipulated to provide the same for the purposes of installation. The respondent regards subdivision 20 as a mere license, but it seems rather to be one of the inducements to the defendants to make the lease and an essential part of it. Hence, whatever of the facilities covered

App. Div.]

Second Department, November, 1911.

by the lease would be reasonably necessary in contemplation of the parties to install the plant, the lessor should have had ready by December first. But the trial court precluded all inquiry tending to show what unfurnished was needed, and this court is disabled thereby from due consideration, unless it shall decide that the lease by subdivision 20 covenanted for the readiness of the building without the facilities for its use for the installation. But by what means should the machinery be raised to the fifth floor? The respondent suggests the stairs, but nothing shows their adequacy, and use of them for lifting to place heavy machinery is not customary. It would be well to have the action retried and facts admitted to the record that present the defendants' contentions.

Hence the judgment should be reversed and a new trial ordered, costs to abide the event.

JENKS, P. J., BURR, CARR and WOODWARD, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

MAGGIE GORMAN, as Administratrix, etc., of THOMAS GORMAN, Deceased, Respondent, v. BROOKLYN, QUEENS COUNTY AND SUBURBAN RAILROAD COMPANY, Appellant.

Second Department, November 10, 1911.

Railroad - master and servant-negligence-death of motorman contributory negligence section 42a of the Railroad Law.

Where a motorman on a street railway is killed by the negligence of a fellow-motorman in operating his car the plaintiff is entitled to the benefit of section 42a of the Railroad Law.

What constitutes reasonable care on the part of a decedent depends largely upon the nature of his duties and what he has a right to expect from the surroundings.

Plaintiff's intestate had run his car into the car barn and was engaged in preparing it to remain over night when a second car came into the barn and stopped about four feet away. He was standing on the track placing the trolley pole of his car, when the other car suddenly started up and he was crushed to death between them. The cause of the sudden starting of the car was the negligence of the other motorman in making

Second Department, November, 1911.

[Vol. 147.

a contact of the trolley pole of his car with the wire while his power was still turned on. This motorman had a full opportunity to observe, the decedent.

Held, that the jury might find that the decedent had not been guilty of contributory negligence, and a judgment for the plaintiff should be affirmed.

APPEAL by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1911, upon the verdict of a jury for $6,000, and also from an order entered in said clerk's office on the 13th day of April, 1911, denying the defendant's motion for a new trial made upon the minutes.

D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.

John S. Wise, Jr. [William J. Mahon with him on the brief], for the respondent.

WOODWARD, J.:

Plaintiff's intestate was employed by the defendant as a motorman on one of its cars, and on the evening of June 19, 1908, he had run his car into the defendant's car barn, and was engaged in preparing it to remain over night, the exact details of what he was doing being lacking in the record. While thus employed a second car, operated by the defendant's servants, came into the barn and stopped about four feet away from the decedent's car. The decedent appears to have been upon the track, between his car and the second car, with his hands up, probably engaged in placing his trolley pole. The conductor of the second car pulled down the trolley pole, turned it around to the front end, where the motorman was standing, and, being unable to place the trolley pole from his standpoint, the motorman on the front platform took the rope, reached out over the dashboard and placed the trolley wheel in contact with the overhead wire. As soon as the contact was made the second car moved suddenly forward, and plaintiff's intestate was crushed between the two cars and killed.

It is urged upon this appeal that the motorman of the second car was not the defendant's vice-principal, under the

App. Div.]

Second Department, November, 1911.

provisions of section 42a of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], added by Laws of 1906, chap. 657), and that the record fails to show evidence of absence of contributory negligence on the part of decedent. We are of the opinion that the case is one falling within the provisions of section 42a of the Railroad Law; that the motorman had physical charge of the operation of the car, and we are also of the opinion that the evidence is sufficient to entitle the jury to pass upon the question of contributory negligence. What constitutes a reasonable degree of care on the part of a decedent depends in a large measure upon the nature of his duties and what he has a right to expect from the surroundings. The evidence shows clearly that the second car had come into the barn and had come to a full stop about four feet from the rear of the decedent's car, and, in the natural course of operation, the car would not start without the affirmative action of the motorman of the car, and the motorman of the second car was in his position in the front of the car, where he had a full opportunity to observe the presence of the decedent, and the latter had no reason to anticipate that this motorman would wantonly run him down, or that the car would start of its own accord, so that he was at liberty, in the ordinary routine of his day's labor, to make the changes of fenders, to change the location of his trolley pole, or to do any of the things which were necessary or proper in leaving his car for the night. Having no danger to anticipate, he was not required to use any high degree of care, and the evidence indicates that he simply went on about his work in the usual way. The jury had a right to draw the inference from the testimony that the plaintiff's intestate did nothing which in any measure contributed to the accident, for it cannot be held, certainly as a matter of law, that where there is no danger which would suggest itself to a reasonably prudent man, it is the duty of one about to be killed to take affirmative steps to avoid the danger. If the second car had acted only in the usual way, under the control of the motorman, there was no danger reasonably to be apprehended; it was only because the car started while the motorman was not at the controller that the accident occurred, and it was not such an accident as any one would have anticipated,