Charles Fairchild, as Administrator, etc., of Teresa Fairchild, Deceased, Respondent, v. John P. Leo, Appellant

Charles Fairchild, as Administrator, etc., of Teresa Fairchild, Deceased, Respondent, v. John P. Leo, Appellant. First Department, February 2, 1912. ITegligenoe — landlord and tenant —fall through fire escape — death — pleading — failure to set forth facts showing landlord’s duty. Where in a negligence action plaintiff claims that defendant violated some duty, facts showing the existence of the duty or obligation must be pleaded and proved. In an action against the owner of a tenement to recover for the death of plaintiff’s intestate, who fell through an opening in the fire escape while hanging out clothes on a clothes dryer attached to the rear wall of the tenement, it is necessary to plead and prove facts showing that defendant owed plaintiff’s intestate some duty with respect to the maintenance of the clothes dryer and fire escape. A general averment that defendant owed a particular duty or that the deceased was lawfully on the premises is insufficient. Where the complaint nowhere alleges that the deceased was a tenant of one of the rear apartments or the servant of such a tenant and alleges no other facts showing defendant’s duty to her in regard to the premises, a motion by defendant for judgment on the pleadings should be granted. While pleadings are to be liberally construed it is necessary that all essential facts be alleged. The court will not infer that the deceased was the servant of a tenant where no fact is stated from which the inference could be drawn. It seems, that negligence could not be predicated upon defendant’s failure to guard the opening in the fire escape but that the attachment of the clothes dryer to the wall so that one using it might fall through the opening in the fire escape might be either itself negligence or present a situation calling on defendant to exercise care to prevent an accident. Appeal by the defendant, John P. Leo, from an order of the Supreme Court, made at the New York Special Term, bearing date the 26th day of October, 1911, and entered in the office of the clerk of the county of New York, resettling an order bearing date the 14th day of October, 1911, and entered in said clerk’s office, denying the defendant’s motion for judgment on the pleadings. J. Brewster Roe, for the appellant. Abraham Oberstein, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The complaint alleges that the defendant was the owner and in control of a tenement house occupied by different tenants as a place of abode; that there were fire escapes in the rear of and appurtenant to said premises under the defendant’s charge, care and control; that in front of the apartment of one of the defendant’s tenants, which was on the second floor, rear, of said premises, there was a clothes dryer, attached to the rear wall in close proximity and partly attached to the fire escape, which was kept and maintained by the defendant and was under his direction and control; that it was used in common by the tenants of the rear apartments for the purpose of hanging and drying clothes; that while the plaintiff’s intestate was “ lawfully, properly and carefully upon and using the said fire escape ,* * * and engaged in hanging clothes on the aforesaid Hill’s Clothes Dryer, * * * she suddenly and without any warning or notice fell into and through a large opening in the said fire escape upon and against a stone platform in the yard below, causing her to sustain injuries which resulted in her death; ” and that said occurrence was due “ wholly to the negligence and carelessness of the defendant in causing and permitting the said fire escape to he and remain in an unsafe, improper, unsuitable and dangerous condition; in causing and permitting the said Hill’s Clothes Dryer to be and remain in close proximity and partly attached to and incumbering the said fire escape; in failing to have the said opening in said fire escape properly or safely guarded or protected so as to prevent injury to anyone lawfully using the said fire escape and the said Hill’s Clothes Dryer appurtenant thereto; in causing and permitting the said opening in the said fire escape to he and remain in close and dangerous proximity to the said Hill’s Clothes Dryer; in violating the provisions of the statute commonly known as the Tenement House Act of the. State of Hew York; in violating the provisions of the Building Code of the City of Hew York pertaining to fire escapes, and in other respects in failing to exercise reasonable care, diligence and prudence in the premises, and that the plaintiff’s intestate was entirely free from fault or negligence in the premises on her part.” It is difficult to see how negligence can he predicated upon the failure to guard the opening in the fire escape to which, of course, free access must he allowed and which the statute does not permit to he covered. (Tenement House Law [Consol. Laws, chap. 61; Laws of 1909, chap. 99], § 16, as amd. by Laws of 1909, chap. 354.) However, it may he possible that the attachment of the clothes dryer to the fire escape in such a manner that a person using it might fall through the opening was either itself negligence or presented a situation calling upon the defendant to exercise some care to prevent such a casualty. It is impossible to determine that question, without knowing precisely what the situation was, and it may he that under the averments of negligence above quoted the plaintiff may be able to prove some act or omission constituting negligence. The authorities bearing upon the question as to what constitutes a sufficient averment of negligence are collated, and the rule to he deduced from them is plainly stated by Hr. Justice Thomas in Pagnillo v. Mack Paving & Construction Co. (142 App. Div. 491). The learned counsel for the appellant virtually concedes that the averments of negligence are sufficient. He states in his brief: “The question is not whether defendant was guilty of negligence in the construction or maintenance of fire escapes or clothes dryers on his premises, but whether the complaint alleges facts showing that defendant was under any imposed duty to plaintiff’s intestate to exercise care in the construction or maintenance of the fire escapes or dryers.” It is undoubtedly the rule that, where a violation of duty is claimed, the existence of the duty or obligation must be shown. It was, therefore, necessary for the plaintiff to plead facts from which it could be inferred that the defendant owed the. plaintiff’s intestate some duty with respect to the maintenance of the clothes dryer and fire escape. A general averment that the defendant owed a particular duty or that the plaintiff’s intestate was lawfully on the defendant’s premises would not suffice. (City of Buffalo v. Holloway, 7 N. Y. 493; Petty v. Emery, 96 App. Div. 35.) It is averred that the clothes dryer was used in common by the tenants of the rear apartments. It doubtless might be inferred from that averment that the defendant owed a duty to those tenants and their servants to maintain it in a reasonably safe condition. But the complaint nowhere alleges that the plaintiff’s intestate was a tenant of one of the rear apartments or the servant of one of such tenants. The plaintiff asks us to infer that his intestate was a servant of the tenant in the front of whose apartment the dryer was attached, but there is no fact stated from which that fact is to be inferred unless we indulge in supposition. If it was the fact it could easily have been stated, and, while pleadings are liberally construed, it is still necessary that all the essential ultimate facts be stated so that the court may determine whether, if the statements are true, the plaintiff has a cause of action, and the defendant may be informed of what he is to meet. We cannot supply an essential fact by supposition or guesswork. If the plaintiff’s intestate was a mere licensee, the facts stated are insufficient to show that the defendant omitted to perform any duty which he owed her. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.