Dancy v. Walz

98 N.Y.S. 407 | N.Y. App. Div. | 1906

Hirschberg, P. J.:

The complaint was .properly dismissed as it fails to state a cause of action. It alleges in substance that the defendant is the owner of certain premises in the borough of Manhattan, in which the plaintiff leased an apartment for himself and family at an agreed monthly rental, and in which he continued as a tenant from month to month until May, 1904. It further alleges that the apartment was heated by steam supplied by the defendant; that. in consideration of, the rental the defendant agreed to supply steam to heat the apartment comfortably, and that in the middle of the month of April, 1904, the defendant discontinued the supply of steam heat and thereafter neglected and refused to furnish any heat, whereby the plaintiff’s infant child, being sick with measles, contracted pneumonia and died. The plaintiff seeks to recover $5,000 damages for the death of the child, and $175 expended for physician’s fee.s and the services of an undertaker.

The action is not maintainable. It was unknown at -the common law, and as created by statute is given only to the representatives of the deceased who are permitted to sue for the benefit of the next of kin.. (See Code Civ. Proc. § 1902 et seq.) The relation between the parties herein was wholly contractual, and it'has been often held that no action will lie for personal injuries sustained in consequence of the breach,of an agreement to keep leased premises in repair. (Frank v. Mandel, 76 App. Div. 413 ; Stelz v. Van Dusen, 93 id: 358; Sherlock v. Rushmore, 99 id. 598; Boden v. Scholtz, 101 id. 1 ; Hagin v. Cayuga Lake Cement Co., 105 id. 269.)

There is no distinction in principle between a covenant to repair and one to keep the premises heated in. respect of the right of recovery of damages such as are asserted in this action. In Eschbach v. Hughes (7 Misc. Rep. 172) it was held by the General Term of the Court of Common Pleas, for the city and county of Hew York that where the landlord violated a covenant in a lease requiring him to keep the roof in, repair,, and the tenant contracted pneumonia in consequence of the failure, there could be no recovery for the damages caused by such sickness;, that they were too remote, were not within the reasonable contemplation of. the parties, nor the immediate Or natural result of the breach., This. decision was followed by the Appellate Term in O'Gorman v. Teets (20 Misc. Rep. 359).

The. judgment, should be affirmed.

Jenks, Hooker, Rich and. Miller, JJ., concurred.

Judgment affirmed, with costs.