13 Abb. N. Cas. 441 | City of New York Municipal Court | 1883
From the record before us it appears, that the defendant leased of the plaintiff certain premises in the City of New York, known as No. 351 Fifth avenue, under a written indenture of lease, dated April 13, 1877, and that said premises at the time Of said lease were partially furnished. By this lease, which contained all the provisions of the letting, it was stipulated that the party of the first part should, “at the commencement of the lease, put the plumbing, range and furnace in good order and repair, and during the continuance of the lease the party of the second part should keep the said premises, plumbing, range, furnace, &c., in good order and repair at his own cost.” The lease was to begin May 1,1877, and to continue for three years, to wit, to May 1,1880.
The defendant by way of defense alleges a breach of the covenant to repair on the part of the landlord, and that by reason of such breach the sewer gas escaped and the house was unhealthy, malarious and uninhabitable, and that the defendant and his family became sick, and that he thereby suffered damage in the sum of $9,000. Defendant also alleges that he expended the sum of $44 in making certain necessary repairs to the furnace.
The court below allowed the proof as to the latter expenditure, but declined to admit proof of special damage arising from defective plumbing and consequent escape of sewer gas which caused sickness to defendant and his family. The ruling of the court below in this regard is the substantial question here presented for our consideration, and, under all the circumstances of the case, we think the ruling correct, and the judgment should be affirmed.
It will be noticed, preliminarily, that there was no eviction, and the questions frequently arising in regard to the untenantableness of the premises do not appear, as they were admittedly tenantable from the fact that defendant occupied them, and such occupancy concludes him (1 Rawle on Cov. 144; Egerton v. Page, 20 N. Y. 281). In the late case of Bond v. Lawton (90 N. Y. 295), the defendant claimed as part of his damages his necessary absence from the premises, owing to a disturbance by plaintiff of peaceable possession. The court held that the covenant of quiet enjoyment was implied, but that it extended only to possession, and that as defendant had remained in possession he had no ground of counter-claim. The
It will be noticed, in the first place, that the covenant on the part of the landlord was to put the plumbing, furnace and range in good repair at the commencement of the lease, and that he did not undertake to keep them in repair. The obligations of the plaintiff and the rights of the defendant became fixed at that moment, and it was at that moment that the defendant was at liberty to affirm or rescind the contract, and there did not exist after' that time a continuing liability on the part of the plaintiff. It was also at that moment that the defendant’s right of action accrued, and he was bound .to make his election. The covenant to put in repair admits of but one breach undone action (Coward v. Gregory, 2 L. R. C. P. 153). Assuming that the covenant on the part of the plaintiff was all that defendant can claim for it, and that it was a condition precedent, then the hiring would, in one sense, be a conditional one, and defendant was at liberty to withdraw, or move in and make the repairs himself. He did the latter, and I am at a loss to see how his damages can exceed such expenditure, even if they can be allowed, in view of the fact that he consented to take the premises as they were at the commencement of the lease ; and it might” well be claimed that he waived the .condition. Be that as it may, it is quite clear that the continued possession of the premises by defendant, even though he complained of their condition, was a waiver of any claim for damages arising from the failure to repair (Arnold v. Clark, 45 Super. Ct. [J. & S.] 252; Hunt v. Silk, 5 East, 449; Parker v. Palmer, 4 B. & Ald. 387 ; Street v. Bely, 2 Id. 456); and that in any event he could only recover the actual amount laid out by him (Darwin v. Potter, 5 Den. 306; Williams v. Williams, 9 L. R. C. P. 659).
That there may exist such a deception, either by suppression of the truth or a suggestion of falsehood, is not questioned, as when a landlord lets premises which are infected by a contagious disease (Minor v. Sharon, 112 Mass. 477 ; Cesar v. Karutz, 60 N. Y. 229), or the presence of a stench, proceeding from an unknown cause, which make the premises untenantable
Fraud is expressly waived in the third offer of proof, and plaintiff is chargeable only propter revi ipsam. Neither is it claimed that the repairs were done negligently, which might possibly bring it within the ruling in Walker v. Swayzee (3 Abb. Pr. 136, 138), inasmuch as the defendant alleges that the plaintiff did not do or attempt to do the repairs as agreed upon in the lease. The question therefore resolves itself into the ordinary one of the liability of a landlord, who lets a furnished or partly furnished house, with defective plumbing, and so defective as to allow the escape of sewer gas, which is recognized as unhealthy, and oftentimes deadly in its effects ; and also the rights of a tenant who leases a house built in the ordinary manner under the express or implied covenant to keep it in repair.
This same question was substantially presented to this court in the case of Coulson v. Whiting,
The residents of all towns are in a state of alarm from actual or supposed malaria which all sewers generate, and there is probably no house in this city which is free from occasional smells that such a system has evolved. This may arise from many causes, such as
It seems like stating a truism to declare that a person hires a house as a buyer purchases goods—the law compels him to inspect them and satisfy himself of their character, and he buys for better or for worse (Jones v. Just, L. J. 37 Q. B. 89 ; Keates v. Earl Cadogan, 10 Com. B. 591), and if a tenant, for purposes of economy or otherwise, - elects to hire a tumbledown house he does so at his peril, and he cannot be heard to complain if it falls altogether. It is his duty to make all necéssary examinations, and having hired it he becomes liable for the rent for the full term of the lease. The common law was inexorable in this regard and gave the tenant no relief and compelled him to pay, if the premises became wholly untenantable from any cause whatever. If ■ the house was burned down or was blown down, he was still liable in the absence of an express covenant in his behalf. The statute of 1860
Aside, then, from this statute, which embraces few and exceptional cases, it is quite clear that a tenant who hires a house does so at his peril, and that there is no implied warranty that it is fit for the purposes designed or is even habitable.
It would seem, however, from the number of cases which come before the court for determination, that plumbing is deemed exceptional in its character. The roof may leak, the plastering give way, the doors and windows be broken, and ocher misfortunes incident to housekeeping may occur, and no claim is made that an eviction has been established or a right of action has accrued against the landlord for the tenant’s ill health, but if a pipe becomes filled up (by neglect or otherwise), or the solder becomes loosened or the pipe itself becomes deranged, or the main séwer is in such condition as to empty the traps, the tenant for some reáson claims that a different rule applies. Now, if a tenant elects to hire a house which’ empties into a sewer, with ramifications throughout his sleeping apartments, he does so with all the liabilities that such an election ■ engenders, and with full knowlege that no plumber has yet been able to keep out the gas or prevent the smells. The repairs of a sewer pipe are no different from the repair of a window or a door, and the distinguishing injury arising from such neglect is not only incidental and remote, but as matter of fact, is the result of the tenant’s own election. He hired the premises with full knowledge of these connections, and the landlord
Under such circumstances, smells, and even sickness, are not only not extraordinary but are inevitable, and. I fail to see how this furnishes any ground of action against the landlord. The party who hires has an opportunity to examine the house, and he can examine the plumbing as well as the walls in so far as it can be examined at all, and he has possibly as much knowledge as the lessor, for there is no implied covenant as to plumbing any more than of plastering or painting or tinning. In one sense it may be said, that it is concealed and the tenant could not tell what he was hiring, but the same may be said of nearly all the carpenter work, the brick work, and nearly every portion of a building of a substantial character. The charge of concealment and deception in this class of cases is undoubtedly an outgrowth of anger which has its source from the painful results of.such defects, but the law in its present state furnishes no remedy to the tenant that I know of, and its rests with the legislature to make landlords and builders liable in such cases ; for the common law throws the responsibility upon the tenant, and I know of no provision which exempts the plumbing or the sewer fixtures from these well settled provisions. As in Foster v. Peyser (63 Mass. 242), where the lease declared that the house was in perfect order, and a defective drain which produced a disagreeable stench was subsequently discovered, it was held that the lease had reference only to the condition of the house as an edifice, and not to the present and future purity of the air within it. As matter of fact, the condition of pipes and of plumbing in a house are easily determined, and it is not claimed in the case at bar that there existed any secret or hidden source of danger to the health, except such as would naturally arise from unrepaired pipes. The mere fact that these pipes
It is claimed by defendant, however, that, admitting the rule of caveat emptor to prevail in cases of ordinary leases of real estate, the rule is different in the case of a furnished house, and he relies upon the case of Smith v. Marrable (11 M. & W. 5). This case and kindred English cases are frequently referred to as establishing the law that the landlord has given an implied warranty that all houses which are leased with furniture are habitable, and free from smells and
It becomes, therefore, proper to consider what was actually decided in that case, and the facts which have assumedly created such an exception to well established law. If exceptional, the effect of the ruling should not only be carefully scrutinized but should be limited to the particular case for which this principle
The remarks of Lord Abinger in Sutton v.Temple (12 M. & W. 52), in criticising the decision of Smith v. Marrable, in which he participated, clearly note the distinction. They were substantially furnished rooms in a lodging house, rented for a particular time, and in such a case there is an implication of warranty that they are fit
The same principle which makes these purchases exceptional, prevails in the above cases. They are both of them instances of renting a furnished house or furnished rooms for a particular season of the year, at a watering-place, where under the English system of living, everything is furnished, and one moves in prepared to commence housekeeping.at once, and such a house may be better likened to an American hotel or furnished rooms in a lodging house, or possibly a modern flat, rented for temporary use. The circumstances under which such a letting occurs establishes its exceptional character. It is tantamount under such circumstances to a representation of its fitness for
Hall, J., concurred; Shea, Ch. J., dissented.
Judgment affirmed, with costs.
Demurrer to answer.
The action was for rent under a lease for three years.
The defendant answered that the premises had been previously used as a house of prostitution, which use was known to the landlord, and not disclosed to the tenant. A counter-claim for $1,000 damages was also set up.
11. H Anderson, for plaintiff.
Joseph D. Hay, for defendant.
The defendant’s answer, to which a demurrer is interposed by the plaintiff, distinctly alleges that the infamous purposes to which the premises had been devoted before they were leased to him, were well known to the plaintiff and his agent, ,mti that they fraudulently, and with intent to deceive and injure Mm, wholly omitted to inform him thereof, and concealed such knowledge from him for the purpose of inducing him to hire the premises, and that, by means of such fraudulent concealment, the defendant hired the premises and accepted, the lease.
The annoyances suffered by the defendant are distinctly disclosed in the answer, and were of a character to justify him in abandoning the premises, which he did. He gave up and surrendered the possession of the same, as he alleges, to the plaintiff. The damage and its nature are stated in the defendant’s answer, for which he seeks compensation in the action. I think the defendant’s answer discloses a legal defense to the plaintiff’s claim for rent. With great respect for the court deciding it, I cannot think that Meeks v. Bowerman (1 Daly, 99), is a correct exposition of the law on the subject. We have here clearly averred deceit and fraudulent concealment practiced to the defendant’s injury and damages. It must be that such acts and concealments on the landlord’s part should prevent a recovery. Staples v. Anderson, 3 Robertson, 327, is indirectly opposed to Meeks v. Bowerman, and announces a better doctrine, more • in. accord with reason and justice. See also Wallace v. Lent, 1 Daly, 481; Caesar v. Karitz, 60 N. Y. 229.
The demurrer is overruled, with privilege to the plaintiff to reply on the usual terms.
See page 455, post, where tills case is reported,
Not yet reported.
L. 1860, p. 592, c. 345.