Frank v. Simon (109 A.D. 38, 1905)

Latohlin, J.:

This is an action by a tenant against her landlord to recover damages for personal injuries sustained through the fall of plaster from, the ceiling of the dining room in her apartment. The apartment house is Ho. 45 East Broadway. It is a five-story building, with an apartment for one family to a floor. The accident occurred about six o’clock on an evening in March, 1902. The plaintiff was tenant of the top floor and had been since the 1st of May, 1900. She was at the supper table with some of her children when about three-fourths of the plaster of the ceiling with “ the slats ” fell, carrying with it the chandelier, which struck her on the head, inflicting' injuries to recover for which this action is brought.

Evidence was introduced in behalf of the plaintiff tending to show that when she first moved into the apartment the ceiling was' newly papered ; that after about two weeks it leaked whenever it rained or snow melted on the roof; that this condition continued throughout the entire period except during a few weeks after the defendant at one time caused some repairs to be made; that the defendant was frequently informed that the roof was leaking; that the ceiling was in danger of falling, and at different times she promised to have the roof repaired but failed to have it properly repaired.

The plaintiff testified that her memory was affected by the accident. Her testimony is somewhat contradictory and uncertain concerning the condition of the ceiling shortly before the accident and the giving of notice to -the defendant thereof. She, however, testified that “a day,” a “few days,” or “a few weeks” béfore the accident she noticed that the ceiling looked “ bent,” and she. says:

“ I told Mrs. Simon the ceiling is going to come down. 1 told her that before the ceiling came down. I cannot remember exactly the date. A few days before I noticed that the plaster is bending down in the paper. I told her myself a few weeks before.” Then in answer to" a question as' to whether it was a few days before or a few weeks before the accident that she notified her, she said: “ I cannot remember exactly; I seen the plaster going in in the paper, and I told Mrs. Simon that the ceiling will fall down some of these days, and .she said she would have it fixed.” She was then asked when she told the defendant that and she answered she did not remember. . She was then asked whether it. was two or three days or how long before and she answered: “ I do not remember; I remember a' few days before, I think.” She further testified that she told the defendant personally and also sent word by her daughter and the defendant said she would fix it; that the water generally came into all the rooms and she had noticed it come through into the dining .room several times. The plaintiff further testified