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May 11, 1948

OLIAN et al.

The opinion of the court was delivered by: RIFKIND

After the jury had rendered a verdict in favor of the plaintiff against defendant Ems Corporation, for $ 102,500 and exonerating defendants Olian and Cantor, defendant Ems Corporation moved to set aside the verdict and dismiss the complaint or for a new trial.

The jury could find as to the Ems Corporation (hereinafter Ems): (1) Ems was the owner of the building and the lessor of the store premises where the accident causing the injuries suffered by the plaintiff occurred; (2) Ems had reserved the right to enter the premises to make repairs; (3) Ems was obliged to make repairs as its own cost if the damage or condition was not caused by the negligence of the tenant; (4) Ems prohibited the tenant from painting, drilling into or in any way marring or defacing any part of the demised premises; (5) the repair of the dangerous condition which caused the electric fixture and part of the ceiling to fall and strike the plaintiff called for both drilling and painting; (6) Ems employed a large staff of maintenance employees in connection with the operation of the multistory building of which the store premises were a portion; (7) Ems' building superintendent frequently visited the store premises in connection with his duties; (8) for some time prior to the fall of the electric fixture, the tenant on the floor above the store premises trundled heavy parcels in such a manner as to cause violent vibration of the ceiling of the store premises; (9) a considerable time before the accident, notice of these vibrations was given to the landlord's agents by the tenants, Olian and Cantor; (10) immediately after the accident Ems' employees took away the debris; (11) shortly thereafter Ems caused the repairs to be made at its own expense and on its own initiative; (12) Ems had control of the site of the danger; (13) reasonable care required inspection of the ceiling and its lighting fixture, at least after notice of the stresses to which the ceiling was subjected; (14) such inspection was simple and could readily be performed; (15) inspection would have revealed the danger; (16) Ems was negligent in that by the exercise of reasonable care it could have discovered the condition, realized that it involved an unreasonable risk to business visitors and made the condition safe. Restatement of Torts, § 343; Restatement of Torts, § 361.

Section 361 reads as follows:

 'A possessor of land, who leases a part thereof and retains in its own control any other part which is necessary to the safe use of the leased part. is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved therein and (b) could have made the condition safe.'

 Ems relies upon the leading case of Cullings v. Goetz, 1931, 256 N.Y. 287, 176 N.E. 397, to exonerate it from liability. That case stands essentially for the proposition that the lessor's covenant to repair is not sufficient to vest it with control of premises so as to subject the lessor to liability to a business visitor of the lessee. In that case it was found that the lessee's possession and dominion were exclusive and complete, page 290 of 256 N.Y., page 398 of 176 N.E. Indeed, the court said, at the same page:

 'We assume the possibility of so phrasing and enlarging the rights of the lessor that occupation and control will be shared with the lessee.'

 And the final caveat of Judge Cardozo is significant, page 294 of 256 N.Y., page 399 of 176 N.E.:

 'Nothing said in this opinion has relation to a case where a part only of the building is in possession of the lessee, and the dangerous condition is in the ways or other parts retained by the lessor'.

 By its own admonition, therefore, Cullings v. Goetz does not govern the case at bar.

 Cullings v. Goetz was followed by Lafredo v. Bush Terminal Co., 1933, 261 N.Y. 323, 185 N.E. 398, which applied some of Cardozo's rhetoric to reach a harsh result from which Judge Crane dissented. Potter v. N.Y. Ontario and Western Ry. Co., 1933, 261 N.Y. 489, 185 N.E. 708, followed the Cullings case. There the court found an exclusive control in the tenant under circumstances which permitted Judge Crane to concur in the result. Appel v. Muller, 1933, 262 N.Y. 278, 186 N.E. 785, 89 A.L.R. 477, was the first departure from the broad sweep of Cullings v. Goetz and held that the landlord's right to enter for the purpose of making repairs was sufficient to impose liability upon the landlord to a passerby injured on the public street.

 In Scudero v. Campbell, 1942, 288 N.Y. 328, 43 N.E.2d 66, the court held, in an action by a visitor of a tenant against the landlord for injury suffered by the visitor when a step leading from the front stoop of a house gave way, that post-accident repairs by the landlord provided sufficient ground to sustain a finding of control by the landlord. An interesting aspect of the case is that it involved a one-family house which had been leased in its entirely to the tenant. To the same effect but involving a two-family house, is Antonsen v. Bay Ridge Savings Bank, 1944, 292 N.Y. 143, 54 N.E.2d 338.

 The case at bar involves a lease of only a portion of the premises; and since the evidence justified a finding that the landlord had retained control over the ceiling and the attachments of the electric fixtures to the ceiling, it seems to me that judgment against the landlord is not foreclosed by Cullings v. Goetz. In the light of the other evidence relating to the breach of duty by the landlord, the verdict can be readily sustained against Ems Corporation. The motion to dismiss must, therefore, be denied.

 It is asserted, however, that the verdict must be set aside and a new trial ordered because the jury's inculpation of the landlord is inconsistent with its exoneration of the tenant. In the following discussion I shall assume that there is such inconsistency. The question is whether that compels the setting aside of the verdict.

 Defendant has cited much New York law holding that such inconsistency is fatal. See Rowell v. Hutzler Lumber Co., 4th Dept. 1930, 228 App.Div. 158, 239 N.Y.S. 192, affirmed 255 N.Y. 581, 175 N.E. 322; Lillian Bros. v. City of Ilion, 4th Dept. 1928, 224 App.Div. 688, 229 N.Y.S.2d 44; Clawson v. City of Ithaca, 3d Dept. 1925, 214 App.Div. 333, 212 N.Y.S. 433; Wilks v. N.Y. Telephone Co., 4th Dept. 1924, ...

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