113 N.Y.S. 691 | N.Y. App. Term. | 1908
For the plain and concise statement requisite, it is alleged that this action is for damages occurring February 5, 1905, by the percolation through the roof of water upon the goods'of the plaintiffs, occupying and having entered into the possession under a lease for one year from
Throughout the trial, however, the chief contention turned upon the effect of a covenant to repair, with a saving proviso
This condition, now often stipulated to forefend forced purchases by lessors of goods in lofts, goods claimed to be in rented lofts, it was sought to evade by testimony that the lessor’s bookkeeper and collector, when told of leaks in November and December, 190J, and in January, during the term of a prior leas.e containing the same condition, said he would have it attended to, and that upon béing asked whether it would be necessary to give a written notice he said it was not necessary so long as he was informed of it. There is no question that attention was given to such information, one of the plaintiffs testifying that, every time he was called up, in fact, he sent somebody to look after it. The information notification of attention needed in the mutual interest of the lessor and the lessee may not be confused with the written notice made a condition precedent to casting the defendant in damages. Nor might the statement of the bookkeeper, if he made it, which he denies, be distorted into a waiver of what he had no authority to waive. Nobody’s collector and bookkeeper, nor even be he a general caretaker and factotum, can abrogate a covenant stipulated with his principal, unless the latter has actually given him authority so to do, or by bis own acts have appeared to clothe him with that authority. An employee can not endue himself with authority by his own assertion, or by his acquiescence, or by his conduct.
To fortify his contention that the written notice was waived, the plaintiffs’ counsel cites a passage from the opinion in Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y., 500: “The doctrine of estoppel lays at the foundation of the law, as to waiver. While one party has time and opportunity to comply with a condition precedent, if the other party does or says anything to put him off from his guard, and to induce him to believe that the condition is
The counsel for the plaintiffs further relies, perhaps relies more, upon a statement in the opinion in Pratt, Hurst & Co. v. Tailer, 114 App. Div. 574, wherein the learned writer, discoursing of a similar provision in a lease, would seemingly have extended to landlords the stringent obligations of common carriers. But the negligence complained of in the case of Pratt, Hurst & Co. v. Tailer, as admitted on demurrer, was a different and affirmative sort, in that the defendants permitted the roof to be occupied for a business calculated to and which did wear the roof and made holes in it, to the knowledge of the defendants, and their agents, and which, as defendants knew, seat
Gildersleeve, J., concurs ; Seabury, J., concurs in result.
Judgment reversed and new trial ordered with costs to appellant to abide event.