98 N.Y. 245 | NY | 1885
Lead Opinion
There is an implied warranty upon an executory sale of merchandise that the property is in a merchantable condition, and upon the sale of a chattel by the manufacturer thereof, that the chattel is St and suitable for the purpose for which it was intended and is purchased,- and upon the sale of provisions for consumption, that they are wholesome and proper for use as food; but upon the demise of real estate, there are no such implied warranties. It is a universal rule, to which no exception can be found in any case now regarded as authority, that upon the demise of real estate there is no implied warranty that the property is fit for occupation, or suitable for the use or purpose for which it is hired. The only implied warranty in such case is one for quiet enjoyment. In Jaffe v. Harteau (56 N. Y. 398) it was held, as stated in the head-note, that “ a lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to the lessee or others lawfully upon the premises for their condition, or that they are tenantable and maybe safely and conveniently used for the purposes for which they are apparently intended.” Judge Geover, writing the opinion, said: “ There is no reason for
Therefore, if any responsibility in this case attaches to the defendant, it cannot be based upon any contract obligation, but must rest entirely upon its delictum. If a landlord lets premises and agrees to keep them in repair, and he fails to do so,
In this case then, under all the authorities, the liability to this plaintiff for the injuries sustained by him from the falling
The case of Swords v. Edgar (59 N. Y. 28), somewhat relied upon by the counsel for the plaintiff, is one where liability was imposed upon the lessor of a public dock upon the ground that
We are, therefore, of opinion that there was nothing in this case for submission to the jury, that the plaintiff was properly nonsuited, and the judgment below should be affirmed.
Dissenting Opinion
(dissenting.) I differ with the majority of the court in respect to this case, with some reluctance, and should cheerfully yield to their larger experience and maturer judgment, were my own convictions on the subject less strong than they are.
The differences which exist between us relate mainly to the principles of law applicable to the facts; but as we also disagree in some minor particulars as to the meaning and effect of the evidence, I deem it proper first to state those facts, which I consider established, or fairly inferable from the proof.
The plaintiff, having been nonsuited, is of course entitled to the benefit of the most favorable construction of the evidence, and the determination of all doubtful inferences, in his favor upon this appeal.
The case shows that he was injured on the evening of March 12, 1879, by the falling of a gallery, in Gilmore’s Garden at New York. He was there as one of the spectators at a public exhibition called the International Walking Match, having paid the regular fee charged for admission to the entertainment. At the time of the accident, he was standing under the gallery
At the commencement of the trial it was conceded that the lessee had the right to make changes in the interior of the building, but subsequently the contract itself was produced and this concession was shown to be erroneous. The gallery was built on the westerly side of the building, extending a distance of about one hundred and twenty-four feet, and forming an extension of another gallery, constructed across the end of the building. It was, so far as appears, intended for use by spectators, and the extension was apparently built in the same way and supported in the same manner as the original gallery.
It was conceded on the trial that at the time of the accident these tables and chairs had been removed, but by whom, or at what time, does not appear. There is no evidence that Kelley, the lessee, ever saw the chairs and tables, or knew how they were used, and no evidence from which a presumption would arise that he had done so. Even if it be conceded that he did know, it is not conceived how that fact can be material. The defendants certainly could not discharge the duty which they owed to the public, by simply notifying their lessee, that they did not consider the structure which they expressly let for the exhibition of a walking match, to be fit for that purpose.
Previous to the walking match this gallery had been used at the Arion and Mardi Gras festivals,-by" persons having charge of those entertainments, by leasing the boxes to individuals and parties desiring such accommodations, at prices exceeding those charged for admission to other parts of the building. The evidence tended to show that the supports of the gallery would have been sufficient to maintain the people who were admitted to it, on the night of the accident, had it not been for the stamping and boisterousness of the occupants. It was expressly conceded on the trial, by the defendants, that they did not build this gallery to be used for the purpose of such an exhibition as a walking match, but that it was intended simply for the accommodation of a limited number of people. It is not claimed that this intention and design was communicated by the owner to the lessee or to any .other person, or that any provision was inserted in the lease .referring to the gallery, but it is contended by the defendant that its division into boxes was sufficient notice to all persons of its limited capacity, and imposed upon them any risk resulting from the admission
It is, perhaps, true that persons of great caution and prudence might infer from the division of the gallery into boxes, that it was not designed to be filled to its utmost capacity, but to determine from this fact alone just how far it was safe to occupy it, and just when prudence would require access to it to be closed, is a question concerning, which, people of varying de1 grees of intelligence, caution and sagacity might well differ. It must be remembered that this gallery was obviously designed for the use of spectators, and was intended by the lessor to be thrown open for their accommodation at public entertainments. The responsibility of deciding just how many people could safely be admitted to it during the course of an exhibition cannot justly be imposed either upon a temporary lessee or its temporary occupants, whose knowledge of its insecurity could only arise from the inferences which they might draw from the fact of its division into compartments. This question was one peculiarly for the consideration of a jury, and should not have been withdrawn from them.
The degree of liability which rests upon the owner of a building, toward those who sustain injuries therein, on account of defects in its structure, varies according to the use for which it is designed. In order to exempt him from liability in the case of a building let for hire, and designed for public
If a structure adequate in all respects for the purpose for which it is apparently designed be delivered into the possession pf a lessee, who is under an obligation to keep it in repair, and while thus in his possession an accident occurs by reason of its want of repair, the liability for damages thereby occasioned doubtless rests upon the tenant alone. (Moak’s Underhill on Torts, 258 ; Clancy v. Byrne, 56 N. Y. 129; House v. Metcalf, 27 Conn. 631.) So, too, when the tenant devotes the premises to uses other than those for which they are let,
I think it entirely immaterial to inquire whether the person injured in this case had a right of action against the lessee, since in actions of tort all of the persons contributing to the injury are liable for the damages occasioned thereby. It. is sufficient here, to say that there was evidence upon which the jury might have found a breach of duty, on the part of the defendant, owing to the plaintiff, and from an omission to perform which he incurred injuries.
The theory now suggested, that the owner of a building designed to be let for the use of public entertainments has, upon letting the same to a temporary occupant, thereby imposed upon such occupant, and relieved himself from, all liability to persons lawfully attending an exhibition therein, and receiving-injuries through defects in its original structure, is a startling one, and is so opposed to what I believe to be settled law that I am unable to assent to it.
The principles upon which such owners have been held liable to the public, visiting their premises and receiving injuries thereon, through defects in their construction, have been frequently discussed and adjudged in the courts, in the cases cited as well as others, and a proper regard for the authorities, not :only in our own court, but in those of other States and conn
Whether it be said that the circumstances raise an implied warranty upon the part of such owner toward those accepting his invitation, or impose a duty upon him with respect to the safety of the public, I regard as entirely immaterial. The natures of the respective obligations seem to be similar and possibly are identical, but either in one form or the other, the liability of the owner seems to have been adjudicated in many cases. When the plaintiff has given evidence tending to show an omission, upon the part of the owners, to perform their duty, he has established a case sufficient to go to the jury, and if there are any circumstances, tending to excuse the apparent neglect of the owner, it is for him to show them.
I have been unable to see any material distinction between this case and that of Bviords v. Edgan\ The defendants in that case were the owners of a pier, kept for the accommodation of vessels receiving and discharging cargoes in the port of 2STew York, and was leased by them to a steamship company from May 1, 1865, for a period of five years with a covenant from the lessees, to keep it in order and repair during the term. The pier was defective at the time it was let, and fell from that cause, while in the possession of the lessees on May 9, 1866, killing the plaintiff’s intestate, who was then engaged, in unloading a cargo, from a vessel lawfully lying at the pier. There was evidence tending to show that the pier was too heavily loaded, at the time of the accident. It was held that the lessors were liable for the damage occasioned by its imperfections. It was said by Judge Folgeb in that case “ that the defendants demised the premises to other parties, binding them in a covenant, to keep the pier in good order and repair. The defendants were not in possession of the premises at the time of the accident. It is claimed that thereby the defendants are under no liability to the plaintiff. We have shown that this pier, so far as the intestate was concerned, was in the nature of a public place whereon he was lawfully engaged. We have shown that it was of such a nature that there was, as to him, a duty resting somewhere to keep this pier in a reasonably sound and secure condition.” The learned judge, then continuing, says that primarily this duty rested upon the occupants of the pier, but further says that there may be a state of facts which will also cast a liability upon the lessors, and proceeds as follows : “ When there has been a nuisance of continued existence upon demised premises, the lessor and lessee may both be liable for damages resulting
It could hardly be contended that such a difference favors the contention of the defendant here. The case of Francis v. Cockrell is a leading case in England and was thoroughly and exhaustively considered both by the Queen’s Bench and in the Exchequer Chamber. The head-note of the report in the Exchequer Chamber reads as follows : “ A man who causes a building to be erected for viewing a public exhibition, and admits persons on payment of money to a seat in the building, impliedly undertakes that due care has been exercised in the erection and that the building is reasonably fit for the purpose, and it is immaterial whether the money is to be appropriated to his own use or not.” Referring to the case of Grote v. Chester da Holyhead Railway Co. (2 Exch. 251), which was an action by a passenger, on the Shrewsbury and Chester railroad, to recover damages for injuries received in consequence of the falling of a bridge, built by another railway company, and leased by them to the company upon whose cars, the plaintiff was riding when the accident occurred, Chief Baron Kelly says: “ The question was whether the defendants who had caused the bridge to be constructed by an engineer with whom they had entered into a contract, had not entered into an implied con
Judgment affirmed.