#### Samuel L. Miller, Resp’t, *v.*Richard Woodhead, Appl’t.1

*(Court of Appeals,*

*Filed March*1, 1887.)

NEGLIGENCE — LANDLORD AND TENANT — DUTY OP LANDLOED TO PASTIES. QTHEB THAN LESSEE, HOW LIMITED.

This defendant rented rooms, overlooking an extension, to a party with the privilege of hanging and drying clothes on the roof of the extension, at the same time cautioning her that the roof was weak. There was a skylight in this roof situated near the windows, and this plaintiff, then a child of about three years, being brought by his mother when she called upon the lessee of the rooms, fell from the window through the skylight, receiving injuries for which this action is brought. *Held,*that the defendant owed no duty to the plaintiff with regard to the roof, and that he could not take advantage of a violation of duty to the lessee in that particular, unless he was at the time of the accident in some way connected with her, as in the use of the roof for that purpose for which-the lessee was privileged to use it, or it may be in the use of it with her license. ■

Appeal from judgment of general term affirming judgment below.

*Henry P. Starbuoh,*for appl’t; *J .G-ray Boyd,*for resp’t.

1

 Reversing 36 Hun, 643, *mem.*

Peckham, J.

The defendant was tbe owner of a bouse in Thirty-third street, New York, some rooms in which he bad rented to a Mrs. O’Brien, who was tbe step-mother of the plaintiff’s mother, the plaintiff being an infant of about tbe age of three years.' Mrs. O’Brien had three rooms in the rear of the bouse, overlooking an extension thereof, which was covered with a tin roof, and in which there was a sky-light to give light to a saloon situated in such extension. Mrs. O’Brien had leased the right to use this roof for the purpose of hanging out and drying her clothes, and when she rented the rooms the defendant had cautioned her about not letting children out on the roof, because the ceiling was very bad, and she had never allowed them to go there. This tin roof was about a foot below the *798windows of Mrs. O’Brien’s rooms, which looked out on it. About sixteen or eighteen inches from the wall in which the windows were set the sky-light in question was situated, so it was about a foot below the windows, and sixteen inches away from the wall. The sky-light had panes of glass in it, and there had been a wire screen oyer the glass, made of long and small wires, very thin, and in bad condition, — old and rotten. This screen had been taken off the sky-light some six weeks prior to the accident, and, at the time of its occurrence, had not been replaced. The glass in the sky-light would have been very likely broken if not covered, as the boys used to climb up a ladder, and play ball about there.

The sill of the windows from the floqr inside was about twen-' ty-three inches, and, in order to go out on the roof from the rooms occupied by Mrs. O’Brien, it was necessary to raise the window, and crawl through the lower part of it. The permission given by the defendant was to Mrs. O’Brien to go out on the roof and dry her clothes there. There were no bars on the window, and if there had been she says she would not have taken the premises.

On the day in question the mother of plaintiff, with a babe in her arms, and accompanied by plaintiff, called at Mrs. O’Brien’s, and, as they went in the room, plaintiff’s mother started to put the babe on a bed in the bed-room off the kitchen, and was gone but a few seconds, when Mrs. O’Brien saw the plaintiff, who had gone to the window, tumbling out. She caught sight of him just as he was disappearing. He fell through the skylight, and sustained injuries to.his head, etc., for which he brought this action. Mrs. O’Brien gave it as her opinion that, if the wire had been on, it had been all right for the boy. From her own description, it is perfectly obvious the wire screen was not placed there to catch people, or prevent their falling through the, sky-light, but for the purpose of saving the glass in the sky-light.

The plaintiff recovered a verdict, which has been affirmed at the general term, and the defendant appeals here.

Upon the case as made by the plaintiff, we are unable to see that any proof was given of the violation of any duty'which the defendant owed to the plaintiff. The roof over the saloon, or the sky-light therein, was not a dangerous structure, and defendant had given no invitation, and issued no license, expressed or implied, to plaintiff to go upon the roof. Mrs. O’Brien had the right to go on it for the purpose suggested, and very likely any agent or servant of hers engaged in that occupation for her. This is no such case. If there had been no roof at this place, the plaintiff would, on falling out of the window, have come to the ground. Can it be contended, in such case, the defendant would have been liable ? If not, how is his liability increased *799by the fact that there is a roof just below these windows, but in it there is a sky-light which a child’s weight could break ? If the defendant owed no duty in the one case to build a roof or a wall or any other structure under these windows to catch people who fall out of them, how is his liability increased when he does build a structure with a roof, but which does not absolutely prevent one from falling through it because of a sky-light?

But the liability seems to have been placed, in the court below, upon the duty which it is said the defendant owed Mrs. O’Brien to furnish her a reasonably safe roof when he let her the right to go upon it to dry clothes. If that be assumed, we do not see how plaintiff is aided. Mrs. O’Brien was not injured, nor any of her servants, by reason of the unfitness of the roof for the purpose for which it was to be used by her or them. The plaintiff was not injured while he was using the roof at all. He simply fell out of a window, (as the evidence shows beyond all question,) and thus received his injury. What had the liability (whatever it was) of defendant to Mrs. O’Brien to do with this question between plaintiff and himself, as the plaintiff was not using the roof for any purpose whatever? Conceding that to fulfill his obligations to Mrs. O’Brien, and to render the roof fit for her to use for the purpose spoken of, this wire screen was a necessity, and that if it had been there on this occasion the plaintiff would not have been hurt, still there was no duty owing by him to this plaintiff to have the roof in that condition, so that he could be caught when he fell out of the window, and the injury thus be averted. The duty of defendant to Mrs. O’Brien, in order to fulfill his contract with her in granting her permission to use the roof, is one thing; but the plaintiff cannot take advantage even of its violation, unless at the time when the accident happened he was himself in some way connected with her, as in the performance of the duty for her, or in using the roof with her license, (even if that would raise a duty,) and in carrying out some right which she had herself. This case has none of those features. The duty of defendant may be one thing to Mrs. O’Brien, and quite another to the plaintiff. *Larmore*v. *Crown Point Iron Co.,*101 N. Y., 391, 1 N. Y. St. Rep. 43. We think this case not distinguishable in principle from *McAlpin*v. *Powell, 70*N. Y., 126.

The judgment of the general term and of the circuit should be reversed, and a new trial ordered, costs to abide event.

All concur.