Mary E. Sherlock, Appellant, v. Lewis E. Rushmore (Sued as Louis E. Rushmore), Respondent, Impleaded with Ada C. Williams and Marsden S. Skidmore

Mary E. Sherlock, Appellant, v. Lewis E. Rushmore (Sued as Louis E. Rushmore), Respondent, Impleaded with Ada C. Williams and Marsden S. Skidmore. Breach of contract to repair demised premises — it does not create a liability for personal injury resulting therefrom. The breach by a landlord of an agreement to make repairs on the demised premises will not render him liable for personal injuries sustained by a member of the tenant’s household in consequence of such breach. Appeal by the plaintiff, Mary E. Sherlock, from a judgment of the Supreme Court in favor of the defendant, Lewis E. Rushmore, entered in the office of the clerk of the county of Kings on the Ytli day of December, 1903, upon the dismissal of the complaint by direction of the court as to said defendant after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of November, 1903, setting aside a special verdict rendered by the jury in favor of the plaintiff, and directing the dismissal of the complaint upon the merits as to the said defendant Lewis E. Rushmore. Thomas F. Magner, for the appellant. C. N. Bovee, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: Dr. J. P. Mooney was in possession of the premises at 118 Kent street, borough of Brooklyn, under a written lease on the 6th day of August, 1900. This lease made no provision for the landlord to make repairs, but the plaintiff, over the objection and exception of the defendant, was permitted to put in evidence a certain alleged oral agreement on the part of the defendant Rushmore, as one of the executors and trustees under the will of Morris R. Williams, deceased, to make repairs. The plaintiff, a relative of Dr. Mooney’s wife, was engaged as housekeeper for Dr. Mooney, and in going to the cellar, fell and was injured because of an alleged defect in the stairs. The ground of negligence is not that the defendant, in making repairs, did the work in a negligent manner, but that he failed to make any repairs. The learned court at Trial Term submitted several questions to the jury, and on the coming in of a verdict for $3,000 in favor of the plaintiff, set the same aside- and entered an order dismissing plaintiff’s complaint upon the merits. The plaintiff appeals. I am of opinion, assuming that the defendant made the agreement alleged, that the plaintiff has failed to make out a cause of action, and that the complaint was properly dismissed. (See Frank v. Mandel, 76 App. Div. 413, 416, 417, and authorities there cited; Stelz v. Van Dusen, 93 id. 358.) The judgment and order appealed from should be affirmed, with costs. Judgment and order unanimously affirmed, with costs.