7 Misc. 687

Peter Herder, Appellant, v. Theophilus J. Bloomer et al., Respondents.

(New York Common Pleas—General Term,

April, 1894.)

Where a landlord reserves the right to use a portion of the demised premises on condition that he will exercise due care in securing the door when making use of the same, an injury to the tenant by the theft of his goods is a contingency naturally within the contemplation of the parties, and the landlord may he held liable for such damages resulting from his negligence in the performance of the duty assumed by him. It is not necessary in such a case to show collusion between the landlord and the thief.

Appeal by the plaintiff from a judgment of dismissal, rendered by the justice of the District Court in the city of New York for the second judicial district.

Action for damages to personal property by reason of negligence.

J. J. Beimett, for appellant.

Bischoff, J.

The basis of the plaintiffs cause of action is the negligence of the defendant in the performance of a duty assumed by the latter under an agreement between the parties. This agreement, as alleged, was that the defendant should exercise due care in securing the door of the plaintiff’s loft, when making use of the same for the purposes of ingress.to and egress from a certain part of the premises reserved to the uses of such defendant.

Apparently, the agreement in question formed part of the mutual agreements between the parties in their relation respectively of tenant and landlord, and it would seem also that an injury to the plaintiff by tlie theft of his goods was a contingency naturally within the contemplation of the parties when making the agreement; therefore, the defendant may he answerable in damages for this result of his negligence when established. See Addison Torts, chap. 1, § 1. The justice, in holding that the plaintiff must prove collusion between the defendant and the thief, and in rejecting the offer of proof *688of the defendant’s negligence, obviously misconceived the nature of the action," and the resulting dismissal of the complaint was error which requires a reversal of the judgment.

Giegebich, J., concurs.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

Herder v. Bloomer
7 Misc. 687

Case Details

Herder v. Bloomer
Decision Date
Apr 1, 1894

7 Misc. 687

New York



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