#### Frances M. Sciolaro, Respondent, *v.*Joseph J. Asch, Appellant, Impleaded with The National Steam and Operating Company, Defendant.

First Department,

December 11, 1908.

Landlord and tenant—negligence — injury on elevator — liability of landlord where elevator run under contract with third parties — evidence.

Where an elevator suddenly started upward from some undisclosed cause as a passenger was about to step out of it, the jury may find the operator negligent in leaving the car before the passenger, so that he was not in position to stop it.

An elevator installed in a building many stories high for the use of tenants is appurtenant to the premises leased, and where a lease expressly provides that *87the tenants may use the elevator, the lessor is liable for injuries received by the lessee’s servant caused by the negligence of the operator, although he was employed by another company which contracted to run the elevator for the lessor.. ■

In an action to recover for injuries so received, the lease is admissible to show the landlord’s obligations and the right of the tenant’s servant to use the elevator.

*It*seems, that although the landlord is liable for injuries so received, he can in his turn recover from the parties who contracted to operate the elevator.

Scott and Latjghlin, JJ., dissented, with opinion.

Appeal by the defendant, Joseph J. Asch, from a judgment of the Supreme Court in favor of the plaintiff, entered iu the office of the clerk of the county of New York on the lOtli day of March, 1908, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 12th day of March, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

*Edward P.*Mowton, for the appellant.

*Herbert J. Hindes,*for the respondent.

McLaughlin, J.:

Action to recover damages for personal injuries alleged to have been caused by defendant’s negligence. The plaintiff was an employee of the firm of Beiter, Fruhauf & Co., which had leased from the appellant Asch the ninth floor of a building owned by him in the city of New York. The lease expressly provided that the tenant might use the elevator for the transportation of passengers or freight in common with the other tenants of the building. The plaintiff, an employee of the tenant, entered the elevator at the ninth floor for the purpose of descending to .the ground floor. The elevator was quite full of people at the time and she, after it arrived at the ground floor, was the last to attempt to leave it. While she was in the act of doing so, for some undisclosed cause, the elevator suddenly started upwards just as she was about to step out of it and she was caught between its floor and the top of the door to the shaft and seriously injured. The person in charge of and who operated the elevator had left it shortly before and was standing some three or four *88feet away with his back to the plaintiff when she attempted to leave the car. This operator was employed by the defendant, the National Steam and Operating Company, which had contracted with Asch to operate the elevators in the building. The plaintiff had a verdict for $12,500 and from the judgment entered thereon and an order denying a motion for a new trial defendant Asch appeals.

That the evidence justified the jury in finding that the operator of the elevator was negligent in leaving the car before the plaintiff did, and that her injuries were caused by such negligence, cannot well be doubted under the facts set out in the record before us. If he had been in his place he could have stopped the car and thus prevented the accident. In this respect the case is very much like the case which was considered by this court in *Ingrafia*v. *Samuels*(71 App. Div. 14). But the appellant contends that inasmuch as he had contracted with the National Steam and Operating Company to operate the elevators in the building, he cannot be held liable for damages caused by the negligence of its employees. This contention it does not seem to me is well founded, even though it be assumed that the National Steam and Operating Company had entered into the contract claimed, which fact is disputed by the respondent. Elevators in a building of the character of this one, installed for the use of the tenants, are as essential to the use and enjoyment of the premises leased as are the stairways, halls or roof of the building. The premises would be practically of little value unless they could be reached by elevators.

In *O'Rourke*v. *Feist*(42 App. Div. 136) the defendant was the owner of an apartment house and had contracted with a third person to put a new roof upon the building. In the progress of the work the property of the plaintiff, a tenant, was damaged and it was held that the defendant was liable, Presiding Justice Yan Bbunt saying: “ It is claimed, upon the part of the defendant, that because he made an independent contract with a third person to do the work, therefore he was not liable for the injuries which had been sustained. * * * In the case at bar, however, the defendant was the landlord of these premises and was bound to keep the roof over the tenants * * * and he was bound to keep the hallways in order, as has been frequently held, and this duty he could not devolve upon any other person. It was one of' the implied *89duties arising from his contract of letting, and, if he failed to perform it, he was responsible for the damages which resulted from such failure.”

An elevator in a building many stories in height installed for the purpose of enabling tenants of the upper stories to reach the same is a part of a building. It is an appurtenance to the premises leased and if it be improperly constructed or negligently operated, the landlord is liable and he cannot escape liability by attempting to delegate that duty to some one else. *(Griffen*v. *Manice,*166 N. Y. 183.) It has been settled by numerous authorities that where a landlord is under obligation to make repairs he is liable for the negligent way in which such repairs are made, even though he employs an independent contractor to make them. *(Sulzbacher*v. Dickie, 6 Daly, 469; *Blake*v. *Fox,*17 N. Y. Supp. 508 ; *Brennan*v. *Ellis,*70 Hun, 472; *Prescott*v. *Le Conte,*83 App. Div. 482; affd., 178 N. Y. 585; *Levine*v. *Baldwin,*87 App. Div. 150.)

Here the lease by the appellant to the employers of the plaintiff expressly provided for the use of the elevator. This imposed upon the lessor the obligation of seeing that the elevator was kept in proper condition and properly operated, which obligation he could not delegate to another so as to relieve himself from liability. (*Wagner*v. *Welling,*84 N. Y. Supp. 979.)

The lease was properly received in evidence for the purpose of showing the landlord’s obligation and the plaintiff’s right, as an employee of the tenant, to use the elevator. Having assumed to provide elevator service the landlord 'must be held liable for negligence in the operation of the elevator, and the fact that the person operating it at the time the accident occurred was employed by a third party cannot relieve him from liability. This rule works no hardship to the landlord, for if it be true that the contractor is* responsible, then the landlord can recover from him any damage sustained by reason .of his or-his employee’s negligence; .and if such contractor be irresponsible, then he is not entitled to protection.

The judgment and order appealed from should be affirmed, with costs.

Pattebson, P. J., and Houghton, J., concurred; Laughlin and Scott, JJ., dissented.

*90Scott, J. (dissenting):

I dissent. I agree that it was the duty of the landlord to keep the elevator in proper condition, and that he cannot shield himself, for a failure to perform that duty, behind a contract with someone else to perform the duty for him. If the accident in this case had resulted from any defect in the elevator or its machinery, the cases cited by Mr. Justice McLaughlin would be applicable. The case made by the proof, however, is one of negligent operation. For this the liability rests upon the person whose servant the operator was. He was not the servant of the owner, because the latter had no power to employ, discharge or direct him. For these reasons I think that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Laughlin, J., concurred.

Judgment and order affirmed, with costs.