#### Catherine Weber, Respondent, *v.*William Lieberman, Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Lease — Defective condition of premises — Liability of tenant to third ■ person —Res ipsa loquitur — Evidence.

Where a lease is silent as to repairs to the leased property, the tenant is bound to make them and is liable for injuries to a third person caused by reason of the defective condition of the premises, although it appears that the landlord had made all the' repairs.

Where, while plaintiff was standing upon an iron grating in front of the show window of defendant’s dry goods store, one of *594the bars gave way and she was injured by her leg going into the hole thus made, the circumstances raise a presumption of negligence on the part of the defendant under the doctrine of *res ipsa loquitur.*

Where in an action against the tenant who was bound to make repairs, there was not the slightest evidence that the grating was ever examined by anybody, and none of defendant’s exceptions presents reversible error, and the damages are not excessive, the judgment entered upon a verdict for plaintiff will be affirmed.

Appeal by the defendant from a judgment in favor of the plaintiff entered in the Oity Court of the city of Eew York, after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.

Louis A. Sable, for appellant.

John A. Eooney, for respondent.

Truax, J.

Defendant was the lessee of the store and part of a basement underneath the same at 521 Eighth avenue in this city. The store was a dry goods store, occupied by the defendant, having a show window. The defendant had sublet the basement. Just below the show window, and forming a part of the sidewalk, was an iron grating three feet wide and about six feet long, used for lighting the basement. The lease between the landlord and the defendant was silent as to who should .make the necessary repairs to the premises. Attracted by the defendant’s display of goods in the window, the plaintiff stepped upon the grating, one of the bars gave way, the plaintiff’s left leg went into the hole thus made and she received the injuries for which she brought this action. In the absence of a covenant in the lease to that effect the obligation to repair was upon the tenant. Hirschfield v. Alsberg, 47 Misc. Rep. 141; 93 N. Y. Supp. 617, and cases cited. Although the landlord testified, which was undisputed, that he had made all repairs to the premises this did not under the circumstances of the case relieve the tenant from his liability to a stranger. *“A*lessee occupying real estate may become liable to a stranger by negligently suffering the demised premises to become dangerous. 'This liability is in*595dependent of any contract between the lessor and lessee. It results from the fact that the lessee is in possession and has control of the premises, and for that reason he is liable, if, by negligently permitting them to become dilapidated and unsafe, third persons are injured.” Odell v. Solomon, 99 N. Y. 635, 636. Plaintiff in walking upon the sidewalk and in stepping upon the grating had a right to assume that it was in a safe condition and the exposure of the defendant’s goods in his window above the grating was an invitation to the plaintiff to examine the same and to do so it was necessary to step upon the grating. The grating was also a part of the sidewalk which the general public was .entitled to make use of. The occurrence of the accident itself under the facts disclosed by the evidence raised a presumption of negligence on the part of the defendant. Where the apparatus is such that ordinarily no accident is to be expected, unless from a careless construction, inspection or user, and both inspection and user were at the time of the injury in the control of the party charged and the accident happened without any voluntary action at the time by the party injured the doctrine of *res ipsa loquitur*may be invoked Griffen v. Manice, 166 N. Y. 188; Womble v. Grocery Co., 135 N. C. 474. The doctrine is founded upon the fact, to some extent at least, that the chief evidence of the true cause of the injury whether culpable or innocent is practically -accessible to the party charged and perhaps inaccessible to the party injured. There was no evidence on the part of the defendant that overcame this presumption. The landlord testified that: *“*I was about the premises a day or so before the accident.” The defendant said: *“I*generally looked around the store (each morning) first and then got out and saw how the windows looked and I did so that morning and I saw nothing wrong there. I did not see any loose grating there * * *. It is not my custom to examine it daily to see its defects. I did not make any examination of the grating alone, but went out to see if everything was all right. I did not examine the grating exactly.” Instead, therefore, of showing any examination or care of the grating, the testimony shows an entire lack of such, there being not *596the slightest evidence that the grating was ever examined by anybody. None of the exceptions taken on the trial constitutes reversible error, the damages ($250) were not excessive and the judgment should be affirmed.

Scott and Dowling, JJ., concur.

Judgment affirmed, with costs.