Opinion
May 3, 1918.
John E. Donnelly of counsel [ Samuel S. Isaacs, attorney], for the appellant.
Leopold W. Harburger of counsel [ Potter Gelles, attorneys], for the respondent.
The action is brought by plaintiff, an infant daughter of Abraham Silverman, against the defendant, who was her father's landlord. Her father rented three rooms in an apartment house owned by defendant. The cause of action is for negligence in failing to keep in repair a window opening out from the tenant's apartment. By reason of the lack of repair to said window, the glass broke and fell and injured the infant plaintiff.
It would seem clear that the landlord is not liable for this injury. He has not covenanted to repair, and even if he had, he would not be liable for plaintiff's injuries by reason of the lack of repair. ( Kushes v. Ginsberg, 99 App. Div. 417; affd., 188 N.Y. 630.) A promise to repair, not made a part of the lease and not upon consideration, creates no obligation of any kind. ( Marston v. Frisbie, 168 App. Div. 670.) It follows that the plaintiff has no right of recovery against defendant for the injury. ( Schick v. Fleischhauer, 26 App. Div. 210.)
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
CLARKE, P.J., DOWLING, PAGE and SHEARN, JJ., concurred.
Judgment and order reversed, with costs, and complaint dismissed, with costs.