Mutual Life Ins. Co. v. Cameron.

bonds for the sum of $50,000. He was duly served with a summons, but having no defense at that time, did not appear in the action. He supposed that the premises covered by the mortgages were an ample security, and were worth far more than the amount of the mortgages. In April, 1874, Cameron was discharged in bankruptcy, and, supposing that this protected him from any liability for any judgment obtained by the plaintiff, paid no attention to the proceedings in the action, and took no steps for his protection. In February, 1875, a judgment of foreclosure and sale was entered, decreeing that plaintiff should have judgment for any deficiency as against Cameron, with others, some of whom were infants. Under this decree, a sale was thereafter made on April 20, 1875. In June, 1875, the infant defendants obtained an order vacating said decree, and permitting all the parties who had answered to proceed to trial de novo; and also giving leave to the infants to file a new answer. From this order the plaintiff appealed to the general term; but nevertheless in July proceeded to a new trial of the action. This new trial resulted in a second judgment for plaintiff, with a provision for deficiency against Cameron with others. This second judgment was appealed from by the infant defendants, and the general term, in January, 1876, dismissed plaintiff's appeal from the order for new trial, and reversed the judgment which had been rendered pending the appeal, and ordered a new trial. In March, 1876, the plaintiff ob.tained a modification of the order dismissing the appeal, the effect of which modification was to permit the judgment entered in February, 1875, and the sale thereunder to stand until further order of the court, and to adjudge, also, that only one-quarter of the mortgaged premises was subject to be sold to satisfy the mortgages sought to be foreclosed. This decision rendered Cameron liable to a judgment for a deficiency

Mutual Life Ins. Co. v. Cameron.

for a large sum.

He did not learn this fact until October 7, 1876, when he immediately moved that the judgment of February, 1875, so far as it directed a judgment for deficiency against him, be opened, and that he be permitted to answer, and set up the defense of his discharge in bankruptcy.

one.

Mr. Joline, for the motion.

Julien T. Davies, opposed.

The

BARRETT, J.-The laches is only apparent. defendant moved as soon as he learned what had taken place in the suit, and when for the first time the question of his liability for a deficiency became a practical He ought to be allowed to plead his discharge, upon payment of the costs which have accrued since the decision of the general term, followed by the notice of trial for the second time, and $10 costs of motion. The plaintiff, however, has the usual leave to discontinue or to disclaim any personal claim against Cameron, within twenty days, without costs.

Ordered accordingly.*
There was no appeal.

*The order was as follows:

Ordered: That said motion be and the same is hereby granted; and that said defendant have leave to serve his answer herein within three days after the entry of this action, on payment to plaintiff's attorney of $25 costs accrued since the decision of the general term herein, ordering a new trial of this action, and $10 costs of this motion.

And it is further ordered that upon the service of said answer, and the payment of such costs, the judgment herein entered on the day of February, 1875, so far as the same provides for the payment, of any deficiency by the said Cameron, be vacated and set aside.

And it is further ordered that the plaintiff have leave to discontinue this action as against said defendant Cameron, or to disclaim any personal claim against him therein, within twenty days after service of said answer without costs, if so advised.

McAlpin v. Powell.

MCALPIN v. POWELL.

City Court of Brooklyn; General Term, September,

1876.

FIRE ESCAPE.-NEGLIGENCE OF LANDLORD.

A fire escape required by law to be erected and kept in repair, is, in case of defects in its condition, a dangerous structure within the rule rendering an owner liable to one injured thereby.

The owner of a building is liable for injury sustained by one of the family of a tenant of an apartment by going without negligence upon a defective balcony of a fire escape, upon which the windows of the apartment open. *

Appeal by defendant from a judgment for $1,186.24, entered in March, 1876, upon the verdict of a jury, and from an order denying a motion for a new trial.

This action was brought by James McAlpin, as administrator of his son, John McAlpin, to recover damages for the death of the latter, when nearly ten years of age, caused by his fall through a fire escape on the premises of the defendant, Rebecca B. Powell, which the plaintiff occupied as tenant.

The plaintiff, a shoemaker, occupied the third floor of the house, and used the back room as a work-shop. The window of this room was low, and opened on a fire escape, which was about six feet long, by three feet

* See on this subject, besides cases in text, Loop v. Lichfield, 42 N. Y. 351, and cases there cited; Losee v. Buchanan, 51 1d. 476; Losee v. Clute, Id. 494; Baird v. Daly, 57 Id. 236, rev'g 4 Lans. 426; Coughtry v. Globe Woolen Co., 56 N. Y. 124, rev'g 1 Supm. Ct. (T. & C.) 452; Mullen v. St. John, 57 N. Y. 567; Vincett v. Cook, 4 Hun, 318; Scullin v. Dolan, 4 Daly, 163; Gardner v. Bennett, 38 Super. Ct. (J. & S.) 197; Clare v. Nat. City Bank, 14 Abb. Pr. N. S. 326; Walsh v. Mead, 8 Hun, 387; Ryan v. Thomson, 38 Super. Ct. (J. & S.) 133; Totten v. Phipps, 52 N. Y. 354; McGarry v. Loomis, 63 Id. 104

McAlpin v. Powell.

and a half wide, and protected by a railing, about three feet four inches high. At one end was a trap-door, which gave access to the ladder below, and was so arranged as to turn upwards on hinges. These hinges had become rusted, and were fastened with a small wire and a string, and were in this condition when the premises were rented to the plaintiff, but he had not noticed their unsafe condition. On the afternoon of August, 1875, the deceased stepped out of the window upon the platform of the fire escape, which was about fifteen or sixteen inches below the window sill, and having walked to the end in which the trap-door was, while he was standing upon this, it gave away, and he fell to the ground and was killed.

The defendant was not aware of the insecure condition of the fire escape.

The case was tried before Chief Justice NEILSON and a jury, February 25, 1876. After plaintiff's testimony had been given, the defendant moved for a nonsuit on the grounds of the negligence of plaintiff's intestate; that the negligence of defendant had not been shown; and that the structure having been made for a fire escape and not being used for that purpose at the time of the accident, defendant was not liable. The motion was denied, and the defendant excepted.

NEILSON, Ch. J., charged the jury that they might estimate damages prospectively; that the plaintiff must prove the negligence of the defendant, and no negligence whatever, on the part of the plaintiff, or in this case on the part of the deceased; that the jury were to consider whether the fire escape was in such an unsafe condition as to make it so dangerous to life that the defendant should not have rented the premises in that condition; that the boy was bound to exercise all the care and diligence proper to one of his age; and that, as the law required the fire escape to be erected,

McAlpin v. Powell.

and that the owner should keep it in repair, if injury resulted, without contributory negligence, from any neglect on her part to do so, she was liable therefor.

To this charge the defendant excepted. The jury found for the plaintiff, and assessed the damages at $1000.

A motion by the defendant for a new trial on the minutes was denied, and thereupon she appealed to the general term.

Man & Parsons, for appellant.-I. As to obligation of defendant to repair, cited: Doupe v. Genin, 45 N. Y. 119; Witty v. Matthews, 52 Id. 512; Suydam v. Jackson, 54 Id. 450; Post v. Vetter, 2 E. D. Smith, 248; Jaffe v. Harteau, 56 N. Y. 398; Casey v. Mann, 5 Abb. Pr. 91; Gott v. Gandy, 2 Ellis & B. 847.

II. As to liability of landlord for failure to comply with the statute for the construction of fire escapes, and that the statute did not operate to vary the contract between the lessor and the lessee, so as to compel the former to repair the premises, where the lease in effect provided the contrary, cited: Mayor of N. Y. v. Corlies, 2 Sandf. 301; Howard v. Doolittle, 3 Duer, 464; Sherwood v. Seaman, 2 Bosw. 127.

III. As to inapplicability of cases which charge an owner for liability with reference to the condition of a street or of a pier where the premises were private, and that the responsibility for the premises, as between the defendant and the plaintiff, devolved upon the latter, cited: Congreve v. Smith, 18 N. Y. 79; Davenport v. Ruckman, 37 Id. 568; Dygert v. Schenck, 23 Wend. 446; Anderson v. Dickie, 1 Robt. 238; Swords v. Edgar, 59 N. Y. 28; Cannavan v. Conklin, 1 Daly, 509; O'Brien v. Capwell, 59 Barb. 497; Kastor v. Newhouse, 4 E. D. Smith, 20; Howard v. Doolittle, 3 Duer, 464.

IV. Against the charge that the deceased was only bound to exercise the care proper to his age, counsel cited: Davenport v. Ruckman, 37 N. Y. 568; Sheridan