restrictions imposed by urban life the city discharges the private duty of the members of the municipality which it has become difficult for those members to discharge themselves. The same is true of the furnishing of water to the residents. It was primarily a private enterprise. Originally, the burden of obtaining water for potable or other purposes rested on the persons desiring to use it, to the same extent as in the case of flour to make bread. In many places and in many cities to-day it is furnished by private capitai. But here again the necessities of urban life, and the impossibility of getting water unless by a general supply from distant sources, has rendered it necessary for municipalities to enter upon the work of furnishing water to their residents. It seems to us that all these duties are strictly municipal. It is entirely probable that many other services that are performed by the citizen, each for his own benefit, will, on account of the great convenience and advantage, in the future, be assumed by the municipal government. Indeed, the distinguishing feature that characterizes such services as municipal is that they are primarily the work of the individual citizens, not assumed by the government throughout the State at large, but rendered necessary to be performed by municipalities on account of the condition of life peculiar to such municipalities.

The order appealed from should be reversed, and judgment ordered on the verdict, with costs to the appellant. All concur.

VAN TASSEL v. READ.

Supreme Court, New York, Appellate Division, Second Department, January, 1899.

LANDLORD AND TENANT DANGEROUS PREMISES - PROMISE TO REPAIR — WIFE OF TENANT INJURED. — Where upon the renewal of a lease of premises the landlord promised to repair a cistern cover the defective condition of which was well known to the tenant and his wife, who was injured by falling into the cistern, the landlord was not liable for failing to repair where it did not appear that the cover was defective when the property was first put into the possession of plaintiff's husband (1).

APPEAL from judgment, Supreme Court, Trial Term, Westchester County, in favor of defendant.

1. Compare cases in NOTE ON LIABILITY OF LANDLORD AND TENANT FOR

DEFECTIVE COALHOLES, 3 AM. NEG.
REP. 314, 315.

WILLIAM GEORGE OPPENHEIM, for appellant.

H. T. DYKMAN, for respondent.

WOODWARD, J. The plaintiff seeks to recover for personal injuries sustained in falling into a cistern, the cover to which had become decayed. Plaintiff's husband rented the premises of the defendant, and had been in possession for a series of years, the annual lease expiring in April, 1896. On the renewal of the lease for another year, plaintiff's husband called attention to the defective condition of the covering of the cistern, and the defendant promised to repair the same. This agreement was not kept, and it is admitted that an accident occurred, and that the plaintiff was seriously injured by reason of the defective condition of the cistern cover. The trial court granted the motion of defendant's counsel for a nonsuit, upon the ground that no recovery could be had for personal injuries which the plaintiff had suffered by reason of the defendant's negligence in failing to keep a verbal agreement to repair the property; and, from the judgment entered, appeal comes to this court.

The failure of the defendant to make the necessary repairs in the covering of the cistern, under the circumstances of this case, could not operate to charge the defendant with the liability for personal injuries sustained by the wife of the tenant. The condition of the cistern was well known to the plaintiff and her husband. There was no negligence on the part of the defendant which could, in any proper sense, be construed to be the proximate cause of the accident; and there was no error, therefore, in granting the motion of the defendant for a nonsuit.

The case of Swords v. Edgar, 59 N. Y. 28, relied upon by the plaintiff, is not a parallel case. It was decided by a divided court, which held that primarily the duty was upon the occupants of a pier, built adjacent to navigable waters, for the purpose of loading and discharging freight and passengers, to keep the same in a reasonably sound and secure condition. In the discussion, the court say

that:

"In the absence of any covenant from their lessors to keep the same in repair, that duty, as to all defects arising after their tenancy began, would altogether rest upon them, and there would be no liability upon the lessors. But there may be a state of facts which will cast a liability upon the lessors also. The neglect of this duty, the suffering the pier to fall into such a state of decay as to become dangerous to those lawfully coming upon it, is the creation of a nuisance. Where there has been a nuisance of continued existence upon demised premises, the lessor and the lessee may both be liable for damages resulting therefrom, the lessee in the actual

* * *

occupation of the premises, if he continues the nuisance after notice of its existence and request to abate it; and the lessor, if he at first created it, and then demised the premises with the nuisance upon them, and, at the time of the damage resulting therefrom, is receiving a benefit therefrom, by way of rent or otherwise.

*

A pier so defective and insecure when it is leased as that a subsequent injury, received in the proper use of it as if sound, is consequent upon its orginal condition, is, for the purposes of such an action as this, per se a nuisance. Its effect upon third parties is not the result of the manner of the use of it by the lessee. There is but one use to be made of it, as a place at which vessels may lay, and put off and take on their cargoes. For that use it is rented; and, used therefor, it is the original insecure condition of it which is the cause of an injury."

It is clear that, under the rule laid down in the above excerpts from the opinion of the court, the case at bar cannot be maintained. No evidence appears in the case that the cover to the cistern was originally defective, or that it was in this condition at the time that the property was put into the possession of the plaintiff's husband. The decay, in so far as there is any evidence upon the question, occurred during the time that the family of the plaintiff was occupying the premises; and the mere fact that the annual lease was renewed with a verbal promise to repair the defective cistern cover does not bring the case within any rule of law with which we are familiar.

The plaintiff's husband could, perhaps, have made the repairs, and deducted the cost of the same from the annual rent reserved (Hexter v. Knox, 63 N. Y. 561, 567; Thomson-Houston Electric Co. v. Durant Land Imp. Co., 144 N. Y. 34, 39 N. E. Rep. 7); and he might be able to recover any loss which might have been sustained by reason of the cistern not being in a condition to be used for the purposes for which it was designed (Hexter v. Knox, supra); but there are no authorities in this State holding that the lessor, under the circumstances of this case, can be held liable for personal injuries resulting to the family of the lessee by reason of the defects. known to him at the time of making the contract. The nuisance developed during the occupancy of the lessee. He alone would have been answerable to strangers lawfully upon the premises for damages resulting from the defective condition of the cistern cover, and the lessor owes no greater duty to the family of the lessee than to strangers.

"A lessee occupying real estate may become liable to a stranger by negligently suffering the demised premises to become dangerous,'

say the court in the case of Odell. Solomon, 99 N. Y. 635, 1 N. E. Rep. 408. "This liability is independent of any contract between the lessor and lessee. It results from the fact that the lessee is in possession and has the control of the premises, and for that reason he is liable if, by negligently permitting them to become dilapidated and unsafe, third persons are injured. The foundation of his liability is culpable negligence. He is not, as to third persons, a guarantor of the safety or condition of the premises, but is bound. only to reasonable care, in his use and occupation of them, so that they may not cause injury to others."

So, in the case of Edwards v. Railroad Co., 98 N. Y. 245, the same doctrine is announced, the court holding that if a landlord "demises premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence, which will in many cases impose responsibility upon him. If he creates a nuisance upon his premises, and then demises them, he remains liable for the consequences of the nuisance as the creator thereof, and his tenant is also liable for the continuance of the same nuisance. But where the landlord has created no nuisance, and is guilty of no wilful wrong or fraud or culpable negligence, no case can be found imposing any liability. upon him for any injury suffered by any person occupying or going upon the premises during the term of the demise."

See Jennings v. Van Schaick, 108 N. Y. 530, 532, 15 N. E. Rep. 424; Tuttle v. Manufacturing Co., 145 Mass. 169, 13 N. E. Rep. 465. In the latter case the defendant had agreed, on leasing a farm to the plaintiff and his brother, that it would make certain repairs in the barn floor. The plaintiff, with his brother, entered into possession. The repairs were not made, and the plaintiff was injured. by the floor of the barn falling. The trial court directed a verdict for the defendant. On appeal the court say:

"We do not see how the cases would differ in principle if an action were brought against a third person who had contracted to repair the stable floor, and had unreasonably delayed in performing his contract. We are not aware of any authority for maintaining such an action."

The judgment appealed from should be affirmed, with costs.

concur.

All

BARTNIK v. ERIE RAILROAD COMPANY.

Supreme Court, New York, Appellate Division, Second Department, January, 1899.

CARRIER AND PASSENGER · INJURED WHILE STANDING IN FERRY GANGWAY BY HOISTING DEVICE BREAKING. The question of

plaintiff's contributory negligence was properly submitted to the jury where it was shown that he was standing at the side of the gangway of a ferry slip waiting for the passengers to come off the boat that he intended to board, when he was injured by being struck by a rod to which was attached a chain that was used to hoist the gangway and that broke, if the place where he stood was not railed off from the gangway.

RES IPSA LOQUITUR. — A prima facie case of negligence against a ferry company was made when it was shown that a person on the gangway of the ferry slip was injured by the breaking of the hoisting device (1).

APPEAL from judgment, Supreme Court, Trial Term, Kings County, in favor of plaintiff, an infant, by guardian.

FREDERIC B. JENNINGS (CHARLES MACVEAGH, on brief), for appellant.

WILLIAM M. MULLEN, for respondent.

CULLEN, J. — The plaintiff entered into the ferry house of defendant for the purpose of crossing from Jersey City to New York. As the boat from New York came into the slip, the gates in the ferry house were raised, and passengers were allowed to go on the bridge. To avoid the throng of persons who were coming from the boat, the plaintiff stepped to the side of the gangway for foot passengers, and stood in front of the wheel that is used in fastening the boat to the bridge. While there, a link in a chain which supports in part the weight of the bridge broke, and a rod to which it was attached fell on the plaintiff, breaking his leg. damages for that injury.

I. In PATTON v. PICKLES (Supreme Court, Louisiana, April, 1898), 24 Southern Rep. 220, it appeared that a great crowd of people had been attracted across the river by a fire and were returning and a number of them, among them the wife of plaintiff, were on the bridge leading to the ferryboat when it broke. The court said: "Where a person, having paid for a ticket for ferriage, has, on invitation

The action is brought to recover

of the employees of the ferry company, passed out upon an iron bridge leading to the ferryboat and while standing thereon, it broke, precipitating her into the river, it is not for the passenger to prove that the breaking was due to the negligence of the company. but upon the company to establish affirmatively a state of facts which would release it from responsibility."