Hoag v. Williamsburgh Savings Bank , 78 N.Y.S. 141 ( 1902 )

Hirschberg, J.:

The plaintiff when injnred was the tenant in possession of apart, ments in a double tenement house in the borough of Brooklyn belonging to the defendant. The house was tenanted by several families, and a janitress representing the defendant was on the premises. No question is raised in denial of the legal duty resting upon the defendant to keep the halls and stairways in a reasonably safe condition so far as that result could be effected by the exercise of reasonable care. On the 28th day of February, 1900, the plaintiff was injured by falling in one of the hallways, common to the use of all the tenants, by reason of ice which had formed upon the floor from the leakage of a water closet overhead and from the freezing temperature of the hallway. The appellant contends that there is no evidence of the continuance of the defective conditions for a sufficient length of time to charge the defendant with constructive notice and that, as the ice had formed- only the night before the accident, the defendant should be relieved from responsibility upon the theory of the cases which relieve municipal corporations from liability for the consequences of sudden and recent accumulations and formations of snow and ice upon public highways.

The cases are not analogous. Rain and snow fall of necessity upon the public streets and that ice should form under the conditions of our climate is inevitable. A municipal corporation is held chargeable under such circumstances in the absence of actual notice only for a lack of diligence during a reasonable period subsequent to the creation of the dangerous condition. (Muller v. City of Newburgh, 32 Hun, 2Í; affd., 105 N. Y. 668.) Here, however, the primary defect was in the leaky condition of the ceiling over the hall, arising from the defective condition of the closet. There was evidence from which the jury might properly conclude that this had been in existence for at least two weeks before the plaintiff’s accident and that the attention of the janitress had been called to it some days before. The diligence required of the defendant was accordingly to be measured, not from the time the ice had formed, but from the length of time the water had been allowed to drip upon the floor in a hallway maintained at a temperature in which the formation of ice was reasonably to be expected.

' The ease contains no tenable exception ; and while other matters than the one herein considered are presented in the, briefs, they relate to subjects concerning which a conflict of evidence was elicited and upon which the verdict is conclusive.

The judgment and order should be affirmed..

Judgment and order unanimously affirmed, with costs.