Doupe v. Gennin

1 Sweeny 25 | The Superior Court of New York City | 1869

By the court, Monell, J.

The lease of the plaintiff contained a. covenant on his part to keep the premises in repair during the term. There was no covenant to repair on the part of the landlord, nor any other covenant on his part, except the covenant relating to the abatement of rent during the time the premises might be made unteantable by fire.

A covenant of quiet and peaceable enjoyment may, however, be implied (Mayor of New York agt. Mabie, 13 N. Y. R., 151), but a mere interruption of the use and enjoyment of the premises, consequential upon repairs being made of other parts of the building, without an actual entry upon the demised premises, and an eviction, actual or constructive, of the tenant therefrom, would not be a breach of such covenant. In Gardner agt. Keteltas, (3 Hill, 330), which was an action for not being put into possession of the demised premises, the covenant was construed to mean, that the lessor shall have such a title as shall enable him to give a free and unincumbered lease for the term demised, but that there was no warranty against the acts of strangers. In Howard agt. Doolittle, (3 Duer, 464), it is said that the covenant means that the tenant shall not be evicted by a paramount title; that it relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is no eviction from the premises demised. And a tresspass committed by the lessor was held not to be an eviction (Levy agt. Bond, 1 E. D. Smith, 169; Taylor L. and T., 124).

In the case of The Mayor of New York agt. Mabie (supra), where the covenant was held to have been broken, by an unlawful interference by the lessor, with the enjoyment of the premises, by the lessee, the lessor had entered upon the premises, and assumed the entire control thereot, under a claim of right, amounting to an eviction. It was not intended in that case to extend the'force of the covenant beyond a protection to the lessee against the unlawful entry of the lessor himself, and it is clearly intimated that the entry must be under an assumption or claim of title to the premises. Otherwise it would be a mere trespass and not a breach of the covenant.

The covenant of quiet enjoyment is not broken by the landlord’s neglecting or refusing to keep the premises in repair. The letting implies no obligation by him that the premises shall be or shall continue fit for the use for which the tenant designed them (Howard agt. Doolittle, supra), or even that they are or shall be tenantable (Cleves agt. Willoughby, 7 Hill, 83 ; Sherwood agt. Seaman, 2 Bosw., 127; Post agt. Vetter, 2 E. D. Smith, 284).

There does not seem, therefore, to be any covenant of' the defendant, express or implied, upon which this action can rest, the only covenant suggested by the plaintiff’s counsel being the implied covenant of quiet enjoyment, which the cases I have cited show very clearly is not broken by any of the acts of the lessor complained of in this - case.

The covenant of the plaintiff to pay rent, without a special agreement to the contrary, would have continued after the fire, except for the statute of 1860 (Sess. Laws, ch. 345, p. 592 ; Gates agt. Green, 4 Paige, 355; Willard agt. Tillman, 19 Wend., 358; Howard agt. Doolittle, ubi supra). By that statute a tenant is discharged from the payment of rent after the destruction by fire of the demised premises, and the lease is terminated, So that, if the fire had rendered the buildings wholly untenantable, the plaintiff could have availed himself of the provisions of the statute, and surrendered possession; or, under the covenants in the lease, have required an abatement of the rent until the premises were repaired. In the one case, the lease would have been annulled, the term ended, and the covenant to pay rent discharged ; in the other, the rent only would have ceased until the premises were rejjaired. If the plaintiff continued to hold the possession, he must be deemed to have held under his lease, and to be subjected to all its burdens.

A subsequent parol promise to repair would be good, if supported by a sufficient consideration (Post agt. Vetter, ubi supra). Or, if the defendant had entered upon the demised premises to make repairs, under the reservation of such right in the lease, and had made them in a wanton, or unskilful, or even negligent manner, he might be liable (Turner agt. McCarthy, 4 E. D. Smith; 547.) But there was no consideration whatever for the promise which the plaintiff proved, nor was there any entry upon the plaintiff’s premises, nor any injury resulting from the repairs.

I have not, therefore, been able to find any obligation, express or implied, on the part of the defendant, either in the lease or the parol promise, the breach of which would constitute a cause of action ;t nor do I understand that the case was put to the jury upon any such grounds.

The jury were charged that it was the duty of the defendant to make the repairs immediately after the fire. But whether such duty was imposed by,any legal obligation contained in the lease, or arose from the mere relation which the parties bore toward each other, of landlord and tenant, irrespective of any covenant or promise, the jury were not told. But they were instructed, that if the defendant failed to make the repairs, he was liable.

I have endeavored to show, that the charge to the jury is not supported by any legal obligation resting on the defendant under the lease; nor upon any subsequent promise to repair; nor for trespass, by entry upon the plaintiff’s premises.

Is there any other principle of law on which it can be sustained ?

There is a class of wrongs known as misfeasances, for which remedies are provided. In those cases, however, the injury must be the direct result or effect of the act complained of. The mere omission to do a thing, which a person is not required to do, would incur no liability (Thorn agt. Deas, 4 John. R., 84). But if the thing is undertaken to be done, and is done improperly, a right of action arises.

The defendant was under no legal obligation to repair the building; and had he chosen, he could have left it as it was at the end of the fire, and would, at most, have lost the rent for the remainder of the plaintiff’s term. But tire building might have remained unroofed to the present time, without the defendant incurring any responsibility for any injury to the plaintiff’s possession or property. The plaintiff had his remedy. He could have removed his property, surrendered his possession, and canceled his lease ,• or, if he preferred to occupy the premises in the condition the fire left them, he could abate the rent.

The injury complained of was caused by water and snow coming through the ceiling into the plaintiff’s store, and it is not even claimed that the flow was increased by any thing done in rapairing the roof, If, therefore, the defendant had wholly omitted to replace the roof, and the plaintiff had - continued-to occupy his store, the injury might have continued to the present time. How then can the defendant be liable for not doing, within a -reasonable time, a work which he was not bound to do at all, especially where the injuries complained of resulted from the omission and not from the manner of doing it ?

The case differs from Turner agt. McCarthy (ubi supra), where the lessor entered for the purpose of making repairs, and they were made in a wanton and unskilful manner, and were the direct and immediate cause of damage to the lessee’s property. It also differs from Edgerton agt. Page (20 N. Y. R., 281), where the injury to the lessee’s property was the direct result of the lessor’s acts.

I cannot perceive in what respect a partial injury of the premises could give a greater or better claim upon the defendant than if there had been a total destruction, in which latter event, I presume it will not be contended, that the landlord would be bound to rebuild, or that he would be responsible for damage to the plaintifí’s property, by exposeure to the elements or otherwise,

There may be some principle which I have not been able to discover,' upon which this judgment can be upheld. Those suggested by the respondent’s counsel are, none of them, in my opinion, sufficient.

My conclusions require a reversal of the judgment, and the ordering of a new trial, with costs to the appellant to abide the event.

Jones and Fithian, JJ., concurred.