12 Daly 408 | New York Court of Common Pleas | 1884
We were urged by the counsel for the appellant to treat this appeal with great indulgence, because the learned justice before whom the action was tried did- not call attention to the insufficiency of the answer before he directed a verdict for the plaintiff. An offer to prove was entertained by the justice, and therefore the counsel contends that if a good defense could have been established, we are- at liberty to assume that it would have been established, and upon that assumption to reverse the judgment, though the answer sets up no bar to the plaintiff’s right to a recovery.
I do not so understand the duty of an appellate court in reviewing a judgment. There are few judges of experience that will receive an offer of proof; but when one is entertained we are to pass upon it as we pass upon any other proceeding taken at a trial, and to construe it according to its language, and by the light of the circumstances under which it was made. It is not to be treated with any special
Let us see what the offer was. It was “ to prove the substance of the answer in regard to the question of sewerage ; the substance and all the particulars and matters contained in the answer.” What was the answer that the defendant said he could prove ? He offered to prove his answer, and not a defense not pleaded; and, therefore, the first question that arises is, Did the answer set up a good defense ?
It alleges that “ the sewerage or drainage is defective, and that offensive and noxious vapors and odors arise through the pipes, which have endangered the life of the defendant, and rendered the house unfit for habitation; and that the said defects in the sewerage were wrongfully and fraudulently concealed from the defendant by the plaintiff at the time of making said lease.” I will not say that these allegations are made in bad faith, but they are suspicious; first, because the plaintiff resides in England, and the lease was executed in New York on her behalf by an attorney; and, secondly, because the averment is not that the drainage was defective at the time of the making of the lease, but only that it was defective at the time the answer was verified. The present tense is used when the defects of the sewerage are mentioned, though the perfect tense is used in speaking of thé effects of the alleged vapors and odors. It would not be unfair to infer that there was some reason for omitting to allege what the condition of the house was at the time of the making of the lease (Bloomer v. Merrill, 1 Daly 485). But it may be said that the pleader intended to say that the defects complained of existed prior to the execution of the lease, because it is said that the plaintiff fraudulently concealed them. I shall treat the answer, therefore, as if it alleged that the defects existed at the time the lease was made.
It will be observed that the.defendant uses the words “fraudulently concealed,” but fails to state the facts that made the fraud. What, in the defendant’s judgment,
There is such a thing as a neglect to perform the duty of disclosure where such a duty exists, and that is a case of passive concealment. But there are few instauces in which it is the duty of the landlord or of a vendor to disclose to the intending tenant or the intending purchaser any defect in the subject of the negotiation. Where a tenement has recently been occupied by a person that had an infectious disease, it has been held that the landlord was answerable in damages if he re-let the premises to a stranger without communicating to him the facts within his knowledge respecting the sickness of the former occupant. This is an exception to'tlie rule, and is not intended to relax the principle that a landlord is not bound to disclose any defects in the structure or condition of the premises that make them unfit for habitation. A defect in the plumbing is like a defect in the flues or in the heating apparatus. These imperfections can not be discovered, perhaps, by any examination that the intending tenant can be expected to make ; but yet it has never been held that the landlord is bound, under the penalty of fraud, to disclose such defects, even though he be aware of them. The tenant is as much bound to make ordinary repairs to the plumbing as he is to make any other ordinary repairs, in a house that he imprudently leases whilst it is o,ut of order.
, There is another kind of concealment called “active concealment,” and this is where one party does something to prevent the other from learning a material fact; as, by using contrivances to hide defects, or where he contributes to produce, by some overt act, an erroneous belief by the
It is folly to liken a case in which it appears that a tenant discovers an unpleasant or a deleterious odor from the plumbing to the case of a concealment by a landlord of the fact that an infectious disease is lurking in a house. If I let a house in a fever and ague district, without disclosing the existence of malaria in that region, will any man say that the tenant, who made no inquiries of me, may occupy it till I dispossess him, and then defeat my claim for rent on the ground that I entrapped him into hiring by a fraudulent concealment?
The answer was fatally defective, and the justice properly directed judgment for the plaintiff. But it is suggested that the justice did not discover the defects in the answer until the motion for a new trial was made before him. He certainly had discovered them at that time, and I think it a gratuitous assumption to assert that at the trial he did not know the answer to be bad. Whatever his reason for directing judgment may have been, his decision was right, and it will not be reversed, even if he did give a wrong reason for it. I have no doubt, however, that the justice did see the very point in controversy.
• We are asked to decide that a tenant may abandon the demised premises if, during his term, he finds the plumbing to be in such a condition that it impairs his comfort or injures his health. It is asserted that the house is then untenantable, and, under the Act of 1860, may be abandoned. I deem it unnecessary to add anything to what was said in Sutphen v. Seebass (ante, p. 139) upon that subject.
. The act of 1860 first came under consideration in the
If the plumbing were in a bad condition at the time of the demise, the act of 1860 has no application (Bloomer v. Merrill, 1 Daly 485).
The appeal is, in my opinion, xitterly without merit, and I would not have spent so much time in disposing of it, were it not that some of the younger members of the bar seem to suppose that sewer gas contains unlimited possibilities for speculative litigation.
The judgment should be affirmed, with costs.
Larremore, J.—I concur, because the opinion of the
J. F. Daly, J.—I concur in the opinion of Judge Van Hoesen.
Judgment affirmed, with costs.