Opinion
November 14, 1955.
Present — MacCrate, Acting P.J., Schmidt, Beldock, Murphy and Ughetta, JJ.
Action to recover damages for personal injuries sustained as the result of the entire collapse of a vacant two-family dwelling when plaintiffs-respondents, at that time infants, were trespassing therein. The collapse was occasioned by the failure of the owners and the City of New York, respectively defendants-respondents and appellant herein, to render the building safe and secure or to demolish it. Over the city's objections, plaintiffs-respondents discontinued the action against the owners prior to the submission of the case to the jury, and the court, at the conclusion of the evidence but before charging the jury, dismissed the city's cross complaint against the owners. The city appeals from the judgment, as resettled, entered on the jury's verdict in favor of plaintiffs-respondents against it and dismissing its cross complaint against defendants-respondents. Resettled judgment modified on the law by striking out that portion which dismissed the cross complaint and by substituting therefor a provision granting judgment in favor of appellant against defendants-respondents as prayed for in the cross complaint, and, as so modified, unanimously affirmed, with costs to appellant payable by defendants-respondents. The findings of fact implicit in the jury's verdict are affirmed. The facts adduced on the trial were sufficient to justify a finding that appellant was liable under the principles laid down in the previous appeal in this matter ( Runkel v. City of New York, 282 App. Div. 173). We have given careful attention to the request that certain of these principles be reconsidered and find no basis for altering the determination heretofore made. On the other hand, under the applicable provisions of the Administrative Code of the City of New York and the Multiple Dwelling Law, the acts of defendants-respondents in permitting to exist on their property what the evidence warranted the jury in finding to be an inherently dangerous building in imminent danger of collapse and to constitute a public nuisance and an untenanted hazard rendered them primarily liable for the injuries resulting therefrom. Judgment having been rendered against appellant, it is entitled to recovery over against those whose negligence was the basic cause of the injuries sustained by plaintiffs-respondents. We find the objections to the timeliness of the appeal to be without merit. No appeal was taken from the order resettling the judgment and the resettlement made a substantial change in the directory provisions thereof in order to conform the judgment to the court's previous determination. The original judgment is superseded by the resettled judgment and the appeal is properly taken therefrom. (See S.J.E. Bldg. Corp. v. Matt O.M. Constr. Co., 265 N.Y. 282, and Jonas Naumburg Corp. v. Adu Tirdzniecibas, etc., 220 App. Div. 653.)