Opinion
February 3, 1942.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ.
Appeal by the defendant from a judgment in favor of the plaintiff, entered upon a jury's verdict, and from an order denying motions to dismiss the complaint and to set aside the verdict and for a new trial, in an action to recover damages for personal injuries. Judgment and order unanimously affirmed, with costs. It is undisputed upon this record that the tenant in the premises was a monthly tenant. It is also not denied that the defective condition complained of had existed for some months prior to the accident. The complaint alleged both negligence and nuisance. Under the facts here present the defendant was responsible for the condition of the premises when the last demise was made. ( Ahern v. Steele, 115 N.Y. 203, 209; Zolezzi v. Bruce-Brown, 243 id. 490, 498; Kilmer v. White, 254 id. 64.) The last monthly letting prior to the happening of the accident fixed the time of the defendant's liability. ( Bronheim v. Kelleher, 257 App. Div. 849.) Evidence of repairs made after the accident to prove control was not prejudicial for the reason that as a matter of law the defendant was in control. It was harmless error to leave the question of control to the jury as a question of fact. It was a more favorable charge than the defendant was entitled to ( Day v. Chamber of Commerce of United States, 239 App. Div. 447; affd., 264 N.Y. 522; Bradley v. Village of Union, 164 id. 565) and she cannot now complain.