Herder v. Bloomer , 7 Misc. 687 ( 1894 )

BISCHOFF, J.

The basis of the plaintiff’s cause of action is-the negligence of the defendant in the performance of a duty assumed by the latter under an agreement between the parties. This agreement, as alleged, was that the defendant should exercise due care in securing the door of the plaintiff’s loft, when malting use of the same for the purposes of ingress to and egress from a certain, part of the premises reserved to the uses of such defendant. Apparently, the agreement in question formed part of the mutual agreements between the parties, in their relation, respectively, of tenant and landlord; and it would seem, also, that an injury to the plaintiff by the theft of his goods was a contingency naturally within the-contemplation of the parties when malting the agreement. Therefore, the defendant may be answerable in damages for this result of his negligence, when established. See Add. Torts, c. 1, § 1. The justice, in holding that the plaintiff must prove collusion between the defendant and the thief, and in rejecting the offer of proof of the-defendant’s negligence, obviously misconceived the nature of the action; and the resulting dismissal of the complaint was error which requires a reversal of the judgment. Judgment reversed, and a new-trial ordered, with costs to appellant, to abide the event.