#### Annie Weiss, Respondent, *v.*Julius Valenstein, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Landlord and tenant — action for personal injuries caused by fall of ceiling — landlord’s covenant to repair — when no recovery for negligence.

A tenant, in an action on a landlord’s covenant to repair, cannot recover for personal injuries sustained by reason of the unsafe condition of the premises; to support such a recovery there must *230appear to be some duty imposed by law upon the landlord independent of his contract.

Where the evidence in a tenant’s action on the landlord’s covenant tb repair, for personal injuries sustained by the falling of a ceiling in her apartment, is to the effect that the ceiling had been cracked for some time before it fell, and that on notice being given to the janitor, a brother of defendant in charge of the property, he said “I am responsible for the ceiling, it is in good condition for about two years yet and don’t worry,” and there is no evidence from which it could be found that there was a duty resting on the defendant other than his covenant to repair, or that the janitor was authorized to guarantee the safety of the premises, the testimony is insufficient to sustain a recovery against defendant for negligence, and his motion to dismiss the complaint should have been granted.

Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district,' entered in favor of the plaintiff upon a verdict of a jury.

James I. Cuff, for appellant.

L. B. Brodsky, for respondent.

Page, J.

This action is brought to recover damages for injuries sustained by the plaintiff by reason of the falling of a ceiling in her apartment which'she rented from the defendant. The evidence on behalf of the plaintiff was that the ceiling had been cracked for some time before it fell and the plaintiff had notified the janitor, who- was a brother of the defendant and in charge of the property, of its dangerous condition. The defendant’s brother looked at it and said: “ I am responsible for the ceiling, it is in good condition for about two years yet and don’t worry.”

After reviewing the evidence the court charged the jury: “ The question before you, gentlemen, is this: Whether this woman, Anna Weiss, had a conversation with this man Louis Valenstein; whether she relied upon his promise to make good the repairs on that ceiling, and relying upon that promise she remained in those premises and was injured. *' * # yow jf you find from all the facts and circum*231stances in this case that there was a promise made by this man Louis Valenstein to Mrs. Weiss that he would repair that ceiling, that she relying upon that promise remained there, then you may find such verdict for the plaintiff, etc.” It is well settled law that a tenant cannot recover from his landlord, under a contract to repair, damages for personal injuries sustained by reason of the unsafe condition of the premises. De Negro v. Christman, 77 Misc. Rep., 147, 151. To support such recovery there must appear to be some duty imposed by law upon the landlord independent of his contract. Schick v. Fleischhauer, 26 App. Div. 210; Frank v. Mandel, 76 id. 413. The charge to the jury was erroneous and the judgment must accordingly be reversed. A careful examination of the record fails to disclose any evidence from which it could be found that there was a duty in the defendant to repair the ceiling, other than a contractual one. Therefore no recovery for negligence can be supported by the testimony. The alleged representations of the defendant’s janitor as to the safety of the apartment were clearly nothing more than expressions of opinion on his part and it is not shown that as defendant’s agent he had any authority to guarantee the safety of the premises. The motion of the defendant’s attorney to dismiss the complaint should have been granted, as there was no evidence upon which the jury could find for the plaintiff.

The judgment appealed from is reversed, with costs, and the complaint dismissed, with costs.

Seabuby and Lehman, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.