Opposition Brief — Bernstein v. Ems Corp.

(1564)

TABLE OF CONTENTS

PAGE

ER me ay eC ANY Tes (eh No 1

i PDs ciw eens sock evacnnenesaaoeebans 2

Reasons FoR DENYING WRIT ........... ccc ccc ccccuuce 3

Defendant Ems had no notice of any alleged defect 3

Landlord out of possession and control not liable

to a business visitor of tenants ............... 8

No Question or Pusiic Importance 1s INVOLVED AND

no Law Pornst Wuicu 1s 1N Serious Dovusr or IN

PT Hote en cake ewetkdbhCeve keddaeeewkweneas 18

Cc vibua b 6a a cWabe hohbsbesench been ne uce 18

Table of Cases

Alts v. Leibereon, 233 N. Y. 16,18 ...........cccccces 6

Burnstein v. Haas, 298 N. Y. 596, 597 ................ 6

Campbell v. Holding Co., Inc., 251 N. Y. 446, at p. 448 . 12

Cullings v. Goetz, 256 N. Y. 287, 290 ........ 6, 11, 12,13

Dennis v. Rockefeller Center, Inc., 270 App. Div. 524

i ME cnc scbebsteietaswekeuas 12,13

Dyer v. Robinson, 110 Fed. 99, 100, 101 .............. 12

Doyle v. Union Pacific Railway Co., 147 U. S. 413, at

i TL bsnhndakeekakuksdhwaaderacwsenenas 12

Elefante v. Pizitz [182 App. Div. 819 at p. 821-822

Mi a hs on biwa sn nauenanaba&owh 10

Homin v. Cleveland and Whitehill Co., 281 N. Y. 484... 9

TABLE OF CONTENTS

PAGE

Irons v. William Steiner Sons & Co., Inc., 246 N. Y.

De - LéddaheMeiensbescend kG an cen kouneseeeenes ens 6

Kosier v. Pomrinse, 249 App. Div. 196, at p. 197 .... 12

Lafredo v. Bugh-Terminal Co., 261 N. Y. 323, at p. 325. 12

Lefkowitz v. City of New York, 297 N. Y. 769, affirming

Ms SEE KA aA ON CACh ELA eRMAS SASS WRBASKAS 5, 17

Molte v. Corn Exchange Bank Trust Co., 267 N. Y.544. 6

Montgomery Ward & Co. v. Duncan, 311 U. 8. 243 .... 14

Potter v. N. Y., O. & W. Ry. Co., 261 N. Y. 489 ........ 9

Rosenberg v. Rosenberg, 247 App. Div. 765 .......... 14

Stein v. Pershing Square Bldg. Co., 191 Misc. 30, at

git v. Walon Girealation Go, Tan (101 Fed. (93)

EDA SOEE ORR ec aay | SPER Sorina pee 4, 14

Weingard v. Putnam Theatrical Corp., 225 App. Div ;

BE <5. Ku Chk Sues ORNS ROASABRARS USK EM RES AEE ASS

Statute Cited

Labor Law, Section 202 ..........ccccccccccececeees

a.

Supreme Cowt of the United States

October Term, 1949

No. 316

.

IstporE B. Bernstein,

Petitioner,

against

Ems Corporation.

Respondent,

and

Leopotp Oxian and Morris Canror, co-partners doing

business under the firm name and style of Ouun &

CANTOR,

Defendants.

*

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI*

Statement

The petition and the accompanying brief in this mat-

ter are incomplete and in many instances inaccurate.

The applicant has avoided any discussion of the vital

point on which the unanimous Court of Appeals (174 F.

[2d] 880) determined the case, namely, that there was com-

plete lack of proof of notice to the landlord of any defect

in the instrumentality which caused the injury.

Indeed, the evidence affirmatively established that there

was no notice.

* References are to folios in record, unless otherwise noted.

Question Presented

The real issue presented on the appeal below was suc-

cinctly summarized by Sway, J., in his opinion (pp. 436-

437), wherein he said:

‘* Assuming arguendo that the landlord did retain

control over the site of the dangerous condition, no-

where in the record is there any basis for finding that

it received any notice of the danger or could by the

exercise of reasonable care have discovered it. A

landlord is under no absolute duty to maintain in

safe condition those portions of the building over

which he reserves control. Unless he knows or in

the exercise of reasonable care ought to know, of

the existence of the defective condition, liability

does not attach to him. A. L. I. Restatement of

Torts, §361; Hirsch v. Radt, 228 N. Y. 100; Kramer

v. Stone, 176 App. Div. 549, 551. The plaintiff con-

cedes that Ems Corp. had no actual notice. Nor

was there any evidence of conditions which should

have caused the lessor to suspect the danger. Mr.

Olian, it is true, testified that jarring and vibration

of the ceiling was frequently caused by the moving

of heavy cases of rayon by the tenant who occupied

the floor above the store premises and that on one

occasion he complained about it to the superin-

tendent of the building. But the date of this com-

plaint was early in 1942, before Ems Corp., had ac-

quired title. Hence notice of the jarring and vibra-

tion given to the superintendent was not notice to

an agent of the appellant. And the vibrations did

not produce any visible effects, for there were no

bulges or cracks in the ceiling and no other lighting

fixture had ever fallen. In short we can see no basis

whatever for charging the lessor with notice of the

faulty installation of the fixture. To have dis-

covered the defect, it would have been necessary to

climb up on a ladder, remove the canopy and ex-

nett

tract the screws from the base-plate to make sure

they were of proper length. And since nothing

pointed to this particular fixture as defective, such

an inspection would have had to be made of all the

electric fixtures in the ceiling. We are clearly of

opinion that when there is nothing to suggest faulty

installation, the lessor’s duty of ‘reasonable care’

does not require him to make that sort of an ins pec-

tion. To hold the appellant liable would in effect

make the landlord an insurer of the safety of busi-

ness guests. That is not the law. The lessor’s mo-

tion to dismiss for failure of proof of negligence

should have been granted. Accordingly the judg-

ment must be reversed and the complaint dismissed.

It is so ordered.’’ (Italics ours.)

It is noteworthy that the determination now sought

to be reviewed was reached after oral argument consum-

ing two hours on March 8th, 1949, with no decision for

eleven weeks thereafter until May 24th, 1949, thus evi-

dencing careful, thorough and painstaking consideration

by three Jurists whose ripe judicial experience and scholas-

tic attainments have earned the respect and regard of

Bench and Bar alike.

Reasons for Denying Writ

Defendant Ems had no notice

of any alleged defect

Petitioner alluded (Brief, p. 3) to the opinion of Judge

Norpsys after the first trial; but J udge NorpByE evidenced

doubt as to plaintiff’s right to recover, as witness (p.

26):

“‘The question of liability may well have caused

some pronounced differences of opinion in view of

the evidence and the applicable law * * * if plaintiff

is entitled to recover, the amount of damages re-

turned by the jury is grossly inadequate.”’ (Italics

ours.)

4

Petitioner contended (Brief, p. 4) that the Court below,

on its own view of the evidence, concluded that petitioner

had produced insufficient evidence and could never do

otherwise. That is not so. The Court of Appeals acted

upon the record as it found it; and when it found that no

evidence had been adduced respecting so vital an element

in negligence law as ‘‘notice,’’ the Court had no choice

except to dismiss. As an example, in Still v. Union Circula-

tion Co., Inc. (101 Fed. (2d) 11), the Trial Judge held

that there was no evidence upon which a reasonable find-

ing of liability could be based to support plaintiff’s verdict,

he set the verdict aside and directed a verdict for defend-

ant, the Circuit Court of Appeals affirmed, and this Court

denied certiorari (308 U.S. 565).

Plaintiff here clamors for a new trial which can avail

him nothing. The record of this trial established that on

no possible theory can he present evidence which would

uphold a verdict against this defendant Ems Corp.

His very able trial counsel would have adduced evidence

of notice if any were available to him.

There were never any cracks or bulges in the ceiling

(fols. 594-7; 633-4; 694; 865-6).

No fixtures had ever fallen before this one (fols. 599;

630; 700).

The ceiling admittedly was in good condition previous to

to this accident (fols. 597; 633-4; 864-5).

It is well known, as the testimony established, that

cracks frequently appear as a warning of impending disas-

ter (fols. 763; 786-7), but here there were none (supra).

There was thus no evidence whatsoever of any indication

that the ceiling was in any way defective or that any acci-

dent would occur and when the Circuit Court of Appeals

inquired of plaintiff’s counsel, on the argument, to point

to the least reference to evidence of ‘‘notice’’, he found

himself unable to do so (other than the jarring mentioned

in Judge Swan’s opinion,—about which no complaint was

made at any time during all the lengthy period of three

years after Ems Corp. had acquired title).

The tenant Olian specifically testified that he ‘‘never ob-

served anything wrong with the ceiling or the lights or the

fixtures’’ (fols. 633-4). As the tenant in possession never

observed any dangerous condition, and hence never in any

way directed the attention of the landlord thereto, it stands

to reason that the landlord, which was always out of posses-

sion, had neither actual nor constructive notice.

Though the landlord, the Ems Corp., owned the build-

ing, purchasing the same in November 1942 (fols. 706-7),

Olian & Cantor, the tenants, had come into the building

long before,—in 1938 (fols. 584-6; 626-7).

It was the tenants who installed, at their own expense,

the particular light globe, including the canopy, at the ceil-

ing (fols. 587-90; 624; 627-30; 893-4). This was done ap-

proximately four years before the Ems Corp. purchased

the building, and approximately seven years before the

accident (fol. 626).

Admittedly, there was no notice by the tenant to the

landlord, Ems Corp., of any defective condition.

In the recent case of Lefkowitz v. City of New York, 297

N. Y. 769, affirming 269 A. D. 666, the New York Court of

Appeals unanimously affirmed a judgment dismissing the

complaint, on the ground that there was no evidence of

actual or constructive notice to the defendant of the defec-

tive condition. The Appellate Division had said (269 App.

Div. at p. 666) :

‘There is no evidence of any actual notice to

defendant that the turnstile was out of order before

the alleged accident. Nor is there sufficient evidence

of any constructive notice to charge the defendant

with knowledge of the defective condition complained

a,”

See also:

Molte v. Corn Exchange Brank Trust Co., 267 N. Y.

544;

Cullings v. Goetz, 256 N. Y. 287;

Altz v. Leiberson, 233 N. Y. 16, 18;

Irons v. William Steiner Sons & Co., Inc., 246.

N. Y. 599;

Weingard v. Putnam Theatrical Corp., 225 App.

Div. 808;

Burnstein v. Haas, 298 N. Y. 596, 597.

Petitioner urged (p. 5) that the fixture was defectively

fastened to the ceiling beam and (p. 6) that therefore the

plaster would be pulverized ‘‘immediately’’ upon inser-

tion and that this would be visible to anyone working at

it.

Not only is that statement unsupported by any refer-

ence to the record, but it is contradicted by what has al-

ready been demonstrated as to the total absence of any

cracks or bulges in the ceiling (594-7; 633-4; 694; 865-6)

and by the testimony of the tenant in possession that the

ceiling was in good condition prior to the accident (597;

633-4; 864-5).

An effort has been made (p. 6) to charge defendant

with notice on the theory that jarring of the ceiling was

claimed to be caused by reason of the action of tenants

above Olian & Cantor.

None of that evidence was introduced in plaintiff’s case,

so that, whatever its effect might have been, a prima facie

case was not established, and the point was saved by both

motions to dismiss.

Moreover, the evidence in that respect was wholly inade-

quate. Over objection, Olian was permitted to testify that

in handling cases of rayon in the loft above his store, there

7

was knocking and jarring (fols. 672-6). He said that it

happened in all parts of the store, but that it never induced

him to make any examination whatever of the ceiling (fol.

676).

Manifestly these alleged occurrences had no effect on

the ceiling, for Olian expressly testified that he ‘‘never ob-

served anything wrong with the ceiling or the lights or the

fixtures’’ (fols. 633-4).

[See, too, Judge Swan’s opinion, supra (Record, p.

437).]

A definite idea as to the unimportance of this ‘‘knocking

and jarring’’ may be obtained when it is remembered that

the testimony disclosed that it had continued for years and

right up to the time of trial, without any evidence whatever

of damage either to the ceiling or to the fixtures.

Moreover, the accident in suit was the only accident of

its kind (fol. 700).

Olian claimed that he notified the superintendent of the

building (fols. 701-4), but that was stoutly denied (fols.

837-9).

It developed, however, that this alleged notice to the

superintendent was given in early 1942, while Ems never

took possession until November 1942 (fols. 706-7) and—

most important—the superintendent was only notified on

that one occasion (fol. 707).

Hence it affirmatively appeared that these noises were

never called to anyone’s attention during the three years of

ownership of the building by this defendant, Ems Corp.

How then can this defendant be held responsible, even if

notice was given to the superintendent as testified, on one

occasion, and over three years before the accident—in view

of the other relevant facts, particularly as such alleged

notice was given months before defendant became the

owner and at a time when the superintendent was not its

employee?

The testimony as to one and only one complaint (707)

refutes the untrue statement in petitioner’s brief (p. 7)

referring to ‘‘complaints’’ (plural), and of course, there

was no evidence of any complaint after Ems Corp. became

the owner of the premises.

Landlord out of possession and control

not liable to a business visitor of tenants

Petitioner’s brief (p. 7) tabulated certain provisions

of the lease, but there were other significantly omitted

clauses in that lease which were vitally significant.

Paragraph ‘‘5’’ of the lease specifically provided as

follows:

‘‘Tenant shall take good care of the demised

premises, and of the fixtures therein.’’

That paragraph, then, imposed liability on the tenant

and not upon the landlord.

The landlord was given permission to repair any dam-

age to the demised premises at the expense of the tenant if

caused by the tenant or its employees; but that provision

imposed no obligation upon the landlord to do so.

Another provision of the lease, wholly disregarded by

the Trial Judge, was paragraph 10, which expressly exon-

erated the owner from liability for injury from falling

plaster or appliances unless due to the landlord’s negli-

gence.

Paragraph ‘‘16’’ of the lease provided that the tenant

would permit the landlord to install and maintain pipes

and conduits through the premises, and that the landlord

could enter them for the purpose of examination and to

show them to prospective purchasers and lessees or to make

repairs; but the concluding sentence specifically provided

that it did not impose any obligation or liability on the

landlord for care, supervision or repair other than as there-

in otherwise provided.

In short, the obligation of maintenance of the leased

premises, as such, rested upon the tenants. The operation

and maintenance of lighting fixtures, especially such as

were installed by the tenants, would devolve exclusively

upon the tenants.

In the case of Homin v. Cleveland and Whitehill Co.,

281 N. Y. 484, the Court of Appeals considered the liability

of an owner-landlord to an injured window cleaner, under

the provisions of Section 202 of the Labor Law. The issue,

briefly stated, was whether the owner was ‘‘in charge”’ of

the building involved in the accident, by reason of a clause

in the lease which reserved to the landlord the ‘‘privilege

to enter, to examine the premises or to make repairs which

it thought to be requisite’’ (p. 489). The Court held

(p. 489):

‘‘Mere reservation by the landlord of the right

to inspect the building or to make repairs, if neces-

sary, did not operate to place it im charge of the

building or of the particular premises where the ac-

cident happened nor impose upon it any obligation

to the deceased. Cullings v. Goetz, 256 N. Y. 287.’’

A complete answer to plaintiff’s claims in the case at

bar may be found in the closely analogous case of Potter v.

N. Y., O. € W. Ry. Co., 261 N. Y. 489, wherein the New

York Court of Appeals said at page 495:

‘«* * * The railroad men, so far as the record shows,

never entered the pocket, except on rare occasions

to make needed repairs. That they so entered was

not sufficient to indicate that the railroad reserved

a measure of control over the pocket, or retained

power to forbid or permit visitors to make entry

thereto. (Cullings v. Goetz, supra.)”’

The same condition existed here.

10

The employee of Ems might have gone into this store

on rare occasion to repair leaks (fols. 890-2; 907-8), but

Ems had no master key (fols. 702; 866-7) ; Ems was never

in the premises for painting between 1941 and 1945 (fol.

670). Ems had no ‘‘power to forbid or permit visitors

te make entry thereto,’’ and the complete absence of any

control by Ems over the fixture in question was demon-

strated by the fact that after its superintendent cleaned up

the debris (fols. 613; 854), he left the fixture and the globe

in the premises of Olian & Cantor (fol. 910).

Furthermore, with such ready response to calls from

the tenant for leaks (fols. 890-2; 907-8), the Superintendent

would certainly have given attention to so vital a matter

as a damaged ceiling or threatened injury as a result

thereof, if it had been called to his attention and if the

landlord was responsible for the same.

In view of the terms of the lease which merely confer

upon the landlord the privilege to make repairs, the fact

that the landlord did make such repairs after the accident

in no way constituted an admission of an obligation to do

so. See Elefante v. Pizitz [182 App. Div. 819 at pp. 821-

822 (aff’d 230 N. Y. 567)].

Exception was taken whereby this point was preserved

(fols. 1239-1240) and, in view of the terms of the lease, the

act of the landlord in making the repairs was purely gra-

tuitous and, as a matter of law, could not be construed as

a recognition of legal liability.

The provisions of the lease imposed no obligation on the

landlord to make any repairs.

Paragraph ‘‘4’’ forbade the tenant to drill into the

premises or to do any boring or to string any wires. Never-

theless, that was precisely what the tenants did in this case

in installing lamps and globes in their store. They might

do those acts with the prior written consent of the land-

11

lord, but certainly that particular provision of the lease

imposed no liability on the landlord to the tenant who will-

fully violated it or to the tenant’s custorieis.

It is incomprehensible that the jury should have exon-

erated the tenants im possession and inculpated the land-

lord out of possession, a point strongly urged by defend-

ant in the Court below, but not necessary to its determina-

tion. Petitioner states (p. 9) that the Trial Judge denied

petitioner’s motion to set aside the verdict in favor of

the tenants. He should have added (in all fairness) that

that occurred only after the reversal in the Circuit Court

of Appeals.

The petitioner claimed (p. 9) that the Cireuit Court

of Appeals reversed and dismissed ‘‘solely’’ on the ground

that the evidence was insufficient to show that respondent

knew or had reasonable cause to know of the dangerous

nature of the ceiling. That was only one of the reasons.

A reference to the opinion will demonstrate (Rec., p.

436) that the Court alluded to Cullings v. Goetz, 256 N. Y.

287, 290, a notable decision written by Judge Carpozo in

a suit involving the question of lessor’s liability at the

instance of a lessee or visitors of a lessee for failure to

keep premises in repair under a lease.

Judge Carpozo said (256 N. Y. at p. 290), and it has

been oft repeated since:

“* * * By preponderant opinion, occupation and

control are not reserved through an agreement that

the landlord will repair * * *. The tenant and no one

else may keep visitors away till the danger is abated,

or adapt the warning to the need. The landlord has

at most a privilege to enter for the doing of the work,

and at times not even that if the occupant protests.”

(Emphasis ours.)

12

At page 292 he further said:

“If there is no remedy for the tenant, there is

none for visitors or relatives present in the tenant’s

right (Miles v. Janvrin, supra, at p. 440; Elefante v.

Pizitz, 182 App. Div. 819, 821).’’

See also:

Lafredo v. Bush Terminal Co., 261 N. Y. 323, at

p. 325;

Campbell v. Holding Co., Inc., 251 N. Y. 446, at

p. 448;

Kosier v, Pomrinse, 249 App. Div. 196, at p. 197;

Stein v. Pershing Square Bldg. Co., 191 Mise. 30,

at p. 31;

Doyle v. Union Pacific Railway Co., 147 U. S. 413,

at pp. 422, 423;

Dyer v. Robinson, 110 Fed. 99, 100, 101.

The most recent exposition of this phase of the law of

New York was Dennis v. Rockefeller Center, Inc., 270 App.

Div. 524 (aff’d 296 N. Y. 741), where the Trial Court

charged that a landlord was under a non-delegable duty to

maintain the floors, walls, ceilings and staircases in a rea-

sonably safe condition: that, if the owner in that case

created the condition causing the accident, it was not neces-

sary to find that it had notice thereof, but if it had merely

permitted the condition to exist, then the jury would have

to inquire whether the owner actually knew, or should,

through long !2rse of time, have known of its existence,

and, in that connection, that the question would arise of

access to the portion of the leased premises where the ac-

cident occurred.

The Appellate Division, in reversing the judgment for

plaintiff and dismissing the complaint, said at page 526:

‘“‘The jury was thus permitted, without finding

that the landlord or its contractors had created the

—_—"—

13

condition, to fasten liability on the landlord simply

by findine that the condition was of such duration

that the landlord should have learned of it.

The charge cannot be sustained. Apart from

statutory imposition, as in the case of multiple dwel-

lings, a landlord is not liable to employees or wm-

vitees of a tenant for the condition of leased prem-

ises. (Cullings v. Goetz, 256 N. Y. 287; Werter v.

Samsky, 286 App. Div. 913.) Plaintiff points out

that the landlord operated and managed the build-

ing, and had an obligation under the lease to clean

the premises, and plaintiff claims the landlord

thereby assumed responsibility for the condition of

the premises. The management and operation here

do not appear to be more than the usual landlord

management and operation of an office building,

which do not constitute a degree of control of

leased space to include responsibility to a tenant’s

invitee for the condition of leased premises, and

mere access to the leased premises for cleaning pur-

poses would not create such responsibility. What-

ever might be the landlord’s responsibility on a

showing that the condition which caused the acci-

dent was of its creation, the landlord may not be

held, as the charge permitted it to be held, for a con-

dition in leased premises of unidentified origin and

duration.’’ (Italics ours.)

That case (decided by the Court of Appeals in 1948)

was much later than Scudero v. Campbell or Antonsen v.

Bay Ridge Savings Bank referred to in the Trial Court’s

opinion (1267-8). Based as it was on Cullings v. Goetz,

it is clear indication that the classic opinion of Judge

Carpozo in Cullings v. Goetz is still the law and remains

unaffected by the readily distinguishable decisions men-

tioned by the Trial Court.

There is nothing ‘‘shocking’’ in the result of this case

as claimed by petitioner in his brief (p. 10), nothing more

14

shocking than in the Still case, supra, and the many other

decisions in which plaintiffs fail to establish a valid cause

of action.

Petitioner himself cited (p. 10) Montgomery Ward €

Co. v. Duncan, 311 U. 8. 248, wherein this Court recog-

nized the power of the Circuit Court of Appeals to reverse

and direct judgment n.o.v. That power was properly

exercised here, where there was not only a total absence

of proof of notice, but affirmative proof of no notice.

The passing intimation that plaintiff should be afforded

an opportunity to correct a deficiency when the Court finds

that the jury’s verdict is against the weight of evidence

(p. 12) is wholly inappropriate, since the determination

here was not based on weight of evidence, but wholly on

absence of any evidence as to a vital factor in the case.

And so the unfair and caustic criticism of the Court of

Appeals, Second Circuit (pp. 12-13) should receive not even

scant consideration, both for the reason that its action

in overturning the verdict of this jury was not only based

on such extended argument and careful and lengthy re-

view by three outstanding jurists, but also was predigated

on an affirmative showing of the absence of an essential

prerequisite to liability on the part of this defendant.

The cases cited by petitioner (p. 13) all hed reference

to the issue of control. One of them, Rosenberg v. Rosen-

berg, 247 App. Div. 765, is actually a determination in our

favor, for there the evidence was that defendant retained

in his possession, and exercised dominion and control over,

the particular instrumentality which caused the injury.

There, defendant, under the proof, was upon the premises

frequently.

Here the tenants were in sole possession and control;

the Trial Court so charged (fol. 1220). Furthermore, the

Trial Court refused to charge the requests of the tenants

that they were not in control of the ceiling and the electrical

—

15

fixtures (fol. 1236). If the tenants were thus in possession

and control, as the Trial Court charged, and if there was

nothing to attract the attention of the tenants to any de-

fective condition, as the tenant Olian testified (fols. 633-4),

then the landlord could not be held chargeable with knowl-

edge or notice, and therefore could not be ruled to be negli-

gent, especially where the tenants in possession and control

were expressly exonerated by the jury. Therefore, the ver-

dict exonerating the tenants and charging the landlord with

liability, was manifestly preposterous as well as incon-

sistent with the admitted facts of the case. It was the re-

sult of misplaced sympathy and of bias against a large

corporation.

The basic point of lack of notice to the landlord was

expressly reserved on the motions to dismiss, being par-

ticularly specified on each occasion as one of the grounds

for the motion (fols. 568-9; 1175-6).

In each instance, exception was duly noted to the denial

of the motion (fols. 579; 1176).

No mention whatsoever of the matter of ‘‘notice’’ was

made, however, in the Court’s cryptic instructions to the

jury. The jury thus was misled.

Petitioner erroneously contended (p. 14) that defendant

could have removed the canopy and discovered the alleged-

ly defective condition of the ceiling, but, as Judge Swan

pointed out (Ree., p. 437):

‘«* * * In short we can see no basis whatever for

charging the lessor with notice of the faulty installa-

tion of the fixture. To have discovered the defect,

it would have been necessary to climb up on a lad-

der, remove the canopy and extract the screws from

the base-plate to make sure they were of proper

length. And since nothing pointed to this particular

fixture as defective, such an inspection would have

had to be made of all the electric fixtures in the

16

ceiling. We are clearly of opinion that when there

is nothing to suggest faulty installation, the lessor’s

duty of ‘reasonble care’ does not require him to

make that sort of an inspection. To hold the ap-

pellant liable would in effect make the landlord an

insurer of the safety of business guests. That js

not the law.’’

It was urged by petitioner (p. 14) that notice had been

given to the respondent’s agent, but as J udge Swan said:

“«* * * But the date of this complaint was early

in 1942, before Ems Corp. had acquired title. Hence

notice of the jarring and vibration given to the

superintendent was not notice to an agent of the

appellant.’’

Cases cited by petitioner distinguizhed

The few cases in which this Court reversed the Circuit

Court of Appeals for usurping the jury’s function (Petr.’s

brief, p. 15) have no application here at all.

Each and every one of those cases presented an in-

stance in which there was some proof upon which the ver-

dict of the jury might be based. Conway v. O’Brien was

a case where this Court held the evidence sufficient to go

to the jury on the issue of gross negligence, which was

an essential element there; Jacob v. New York City was an

action where the question at issue was whether the in-

jury was due to a defective or insufficient appliance; Berry

v. United States simply held that the power to dismiss in

the Appellate Court did not deprive the jury of the power

to weigh the evidence and decide contested issues of fact.

In the Conway and Berry cases no motion had been

made, as here, for judgment n.o.v. following the verdict;

but in all three cases the decisive factor was the presence

of sufficient evidence to warrant the jury in deciding one

way or the other, and not, as here, the total absence of all

evidence on so essential an element of the case as “‘notice’’.

—, : noma:

17

The petitioner (p. 16) alluded to certain hypothetical

injustices resulting from the failure of a Circuit Court of

Appeals to agree with a Trial Judge. If the Trial Judge

should dismiss a complaint (as should have been done

here) because of failure on plaintiff’s part to prove an es-

sential element of his cause of action, there is surely no

injustice to anyone if the Appellate Court does so. The

injustice would be if it lacked the courage to do so. The

petitioner’s argument is simply a strained effort to find

some basis for his petition for certiorari in an ordinary

negligence action.

Petitioner’s claim (p. 17) that the decision here pro-

duces a conflict with the New York decisions is demon-

strably unfounded, for the result here conforms with those

decisions as heretofore established. As appears from the

Lefkowitz case and the many others cited and quoted, no-

tice of a defect is a sine qua non of liability in a negligence

case of this type.

Petitioner argues (p. 19) that he has been denied re-

covery against either landlord or tenant. It certainly is

not the fault of the Circuit Court of Appeals that the jury

erroneously exonerated the tenants in possession and con-

trol and that the Trial Judge erroneously denied the plain-

tiff’s motion to set aside the verdict in favor of those ten-

ants. That conclusion can be readily remedied by an ap-

peal on plaintiff’s part to the Court of Appeals against the

Trial Judge’s erroneous determination in favor of the

tenants.

Nor is it true, as boldly stated by petitioner (p. 19), that

the decision of the Circuit Court of Appeals is in conflict

with the opinion of two District Judges and the verdict of

two juries and in flat conflict with the decisions of the New

York Courts. Where one District Judge felt that the low

verdict was due to the question of liability which ‘‘may

well have caused some pronounced differences of opinion,”’

and where both District Judges erroneously allowed the

18

juries to consider the case without requiring any evidence

whatsoever of notice, and where the decisions of the New

York Courts explicitly and unequivocally require proof of

notice before liability could ever be fastened upon a land-

lord out of possession and control, the determination of

the Court of Appeals in the case at bar was unquestionably

correct and just.

No Question of Public Importance is Involved

and no Law Point Which is in Serious Doubt ’

or in Conflict

While petitioner asks for a writ of certiorari and seeks

to create a question of public importance, there is no real

basis for any such hackneyed claim. ‘Much ado about

nothing’’!

It is preposterous for petitioner to urge that any ques-

tion of great public moment is involved or that there has

been any decision herein which involves a conflict of au-

thority. It is merely a question of applying the law to

the set of facts herein involved.

This case was exhaustively considered by the eminent

Court of Appeals, and no question of public importance or

conflict of authority is involved which warrants further

review by this Court.

The petition for a writ of certiorari should be denied.

Respectfully submitted,

I. Maurice Wormser,

Leo F. Ports,

Counsel for Respondent.

Cuarues H. Lang,

Siwney J. Logs,

On the Brief.