Dеfendants-appellants, the executors of John J. Ide (hereinafter called vendor) and Nazwin Associates (hereinafter called vendee) appeal from a judgment against them in a wrongful death аction.
Decedent, a fireman, succumbed while fighting a fire on July 12, 1962, at 390 Broadway, New York City. It has been established that the death of the fireman was caused by the failure of the premises to have a sprinkler system as required by law. At the time of the fire, title was in Nazwin, the vendee, it having been acquired by conveyance, frоm Ide, the vendor, on June 4, 1962, pursuant to a contract of sale made on April 26, 1962.
About 1% years before the fire, while the vendor still owned the premises, a violation had been registered against the building for failure to have an automatic sprinkler system installed. Although the vendor took some initial steps towards the removal of this violation, it was still outstanding at the date title passed.
The contract of sale contained the following provision: " The purchaser agrees to take title subject to the violation pending in the Fire Department under No. 490273, requiring an approved automatic sprinkler system throughout the building.” It is clear, thеrefore, that at the time title passed, the vendee was cognizant of the outstanding violation. It should be noted that it is conceded that it would take about 90 days to install a sprinkler system of sufficient adequacy to have the violation removed.
There is no question in this case as to liability to plaintiff, for both appellants have stipulated that such liability has been
Disregarding for a moment the clause in the contract whereby the- vendee took subject to the existing violation, under the common law it was held that a vеndee could be held liable for injuries sustained as the result of a dangerous condition of the premises, even though such condition pre-existed the time of conveyance. (Prosser, Torts [3d ed., 1964], § 62; Restatement, Second, Torts, § 352 [1965].) To this doctrine one exception has been rigidly applied. Where there is an undisclosed condition, and the vendee has no knowledge of this condition, or where the vendor activеly conceals it, the liability remains with the vendor until the vendee has had a reasonable.time to discover and remedy it. (Pharm v. Lituchy, 283 N., Y. 130; Kilmer v. White,
In such circumstances, liability should remain with the vendor —'the person who created the danger, or who was responsible fоr its continuance. As stated in Kilmer v. White (supra, p. 71) " it would be abhorrent to our notions of justice to relieve the vendor befоre fixing liability on the vendee.” Until liability passes to the new owner, the onus should remain with the old.
It being conceded that it would take about 90 days to install a proper sprinkler system, it cannot be said that the vendee did have a reasonable time in which to cure the dangerous condition that existed at the time of the conveyance. We may not charge the vendee with the running of time commencing with the date of thе contract.
However, the vendor urges freedom from liability and the imposition of liability on the vendee by virtue of the clause in the contract which provided that the vendee agrees to take title subject to the existing violation. We hold that that clause is not an assumption of responsibility on the part of the vendee for any consequences of the existence of the violation. The effect of that provision was merely that the outstanding viоlation would not be a ground for the rejection of title.
Accordingly, the judgment of Special and Trial Tеrm should be modified, on the law and on the facts, to dismiss as against Nazwin, with costs and disbursements against plaintiff as tо Nazwin, and as modified the judgment should be affirmed, with costs and disbursements to plaintiff as against the Ide Estate.
Botein, P. J., Breitel, Stevens and Bastow, JJ., concur.
Judgment unаnimously modified, on the law and on the facts, to dismiss as against Nazwin, with costs and disbursements against plaintiff as to Nazwin, and, as so modified, the judgment is affirmed, with costs and disbursements to plaintiff as against the Ide Estate. Settle order on notice.
Notes
It should be noted that 90 days did not elapse from the time the contract was signed on April 26, 1962 to the date of the fire, July 12, 1962.