87 N.Y.S. 845 | N.Y. App. Div. | 1904
On the 11th day of December, 1900, the plaintiff as the owner of a factory building at 124 to 130 Pearl street, borough of Brooklyn, entered into a written contract with the defendant’s husband, Frank Tousey, by the provisions of which the plaintiff leased to the said Frank Tousey certain floors of the factory building, to be used as a printing office, for a period of five years from the 1st day of February, 1901. Mr. Tousey began moving his printing office in January, 1901, and was fully installed and had been operating his plant for several weeks before the close of the month of February, at which time, by order of the department of buildings, he was compelled to stop running his presses, this -order being subsequently modified so that a portion of the presses were permitted to run, some of them at a reduced rate of speed. Matters remained'in this situation for about one year when Mr. Tousey, having in the meantime constructed a building of his own, removed from the plaintiff’s premises. Mr. Tousey subsequently died, and this action is brought against his executrix to recover the rent due under .the terms of the lease for the months of February, 1902, to and including March, 1903. The answer alleges fraud in the inception of the lease contract and the verdict of the jury allows the plaintiff $194, this being evidently for a portion' of the month of February, 1902," which it. was conceded had not been paid for, though occupied by Mr. Tousey. . This verdict, while nominally for the plaintiff, is in effect in favor of the defendant’s theory of fraud in the making and
The amount claimed in this action, something over §8,000, with the unexpired term to be governed by the decision in this case, involving about $28,000, which fact was called to the attention of the jury by the learned justice presiding at the trial, appeals strongly to the abstract sense of justice, under the facts appearing in this case, and renders necessary a careful examination of the evidence. It is important to bear in mind that while it seems hard to impose a burden of $28,000 upon Mr. Tousey’s estate, for which there can be only a partial return, under the duty of the landlord to make the loss as small as may be within reasonable limitations, there are important considerations of public policy to be borne in mind in adjudications of this character. The gravamen of the defense is fraud; fraud is, in its essential elements, a crime, and we. ought not lightly to convict a man of fraud for the purpose of relieving others of the obligations which they have voluntarily assumed in their contracts. The law surrounds contracts with special protections against interference even by the sovereign power, and it is of the greatest importance that the mutual and lawful obligations of persons qualified to enter into contracts should be observed, and that they should be construed and the law administered within well-defined rules, “not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough.” (Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 109, quoting Cooley Const. Lim. [5th ed.] 484, 485.)
It is uniformly held in this State that the lessee of real property must run the risk of its condition, unless he has an express agreement on the part of the lessor covering that subject. The tenant hires at his peril, and a rule similar to that of cmeat emptor applies and throws on the lessee the responsibility of examining as to the existence off defects in the premises and of providing against their ill effects. (Franklin v. Brown, 118 N. Y. 110, 115.) The same case cites, apparently with approval, O'Brien v. Capwell (59 Barb. 497, 504), to the effect that “as between landlord and tenant,
The defendant’s theory, asset forth in her answer, was that Frank Tousey was engaged in operating a printing establishment in the borough of Manhattan; that he was obliged to use heavy presses, to be operated at a high rate of speed; that this fact was known to the plaintiff at the time of entering into the contract; that the plaintiff examined the machinery and plant “ for the purpose of discovering and advising the said .Frank Tousey as to whether or not the buildings Flos. 124 to 130 , Pearl street in the borough of Brooklyn, were sufficiently strong to carry the said machinery while the same was in operation, and to operate which the plaintiff was to furnish the power as specified in the said lease;” ' that after making the examination the' “ plaintiff represented to said Frank Tousey that the premises Nos. 124 to 130 Pearl Street in the borough of Brooklyn were sufficiently strong to carry the plant and machinery of the said Frank Tousey, and to permit of the operation of the same; and the said Frank Tousey, upon receiving such representations and relying thereupon, entered into the lease hereinbefore referred to; ” that the said Frank Tousey moved into the plaintiff’s premises, placed his machinery, etc., and that the building proved to be too weak to support such' machinery when operated at the high rate of speed demanded by his business; that the “representations made to the said Frank Tousey as hereinbéfore set forth, were Vital to the transaction, and were made with the intent that said Frank Tousey should act upon the same; that said Frank Tousey did act upon the same, and that they were false and were known to
The undoubted rule is that where ■ a party, for the purpose of inducing another to contract with him, states, on Ms personal knowledge, that a material fact does or does not exist, without having knowledge whether the statement is true or false, and without having reasonable grounds to believe it to be true, he is liable in fraud, if the statement is relied on and is subsequently found to be false, ■although he had no actual knowledge of the untruth of the statement. (Daly v. Wise, supra, 312, and authorities there cited.) But fraud is an affirmative defense, and must be proved (Chamberlayne’s Best Ev. [8th ed.] 308, and authorities there cited)it must be shown that the plaintiff, or his agent, made a statement on his personal knowledge, without having reasonable grounds to believe it to be true, and that the statement subsequently proved to be false, to the injury of the defendant. It certainly does not appear by the evidence in this case that Mr. Blank or the plaintiff did not have reason to believe that the “ floors are strong enough to hold your presses.” The building, so far as the evidence shows, was strong enough to hold other heavy machinery which Mr. Blank offered to show; it was in evidence that at the time Frank Tousey and his brother, the witness, were present looking over this building, there were notices displayed upon the several floors, giving the weight which the several floors were 'capable of sustaining, the calculations being made by the department of buildings, and there is no evidence that the weight upon the press floor was greater than that authorized, or that the plaintiff had any reason, at that time, to apprehend that the
. The lease was not executed until the eleventh day of December,, and to give plausibility to the theory that the plaintiff had .made misrepresentations in respect to the capacity of the building St. Clair Tousey testified that, after the conversation above discussed, and early in December, 1900, “ I saw Hr. Prahar at -my brother’s office, building in Union Square. I saw Hr. Prahar and my brother leave that Office together on that day.- It was about noon time.” Then one Charles E. Salmon was called as a witness. He was an employee of Frank Tousey, and he testified that early in December, 1900, the-plaintiff came to the printing office of Frank Tousey in company with the latter during the lunch hour; that he was eating his lunch-on the same floor as the presses, and that, the plaintiff ■ and Hr. Tousey passed around the room among the presses, and that -the witness heard plaintiff say: “ Yes, I know all -about machinery,”' and the plaintiff admits: “ I did make the remark that I knew all about machinery. I do know all about machinery, but know nothing abotit presses. There is: quite a difference between, machinery and. the presses there. I am in the habit of running machinery in m.y line of business, but not presses.” The evidence js furnished by the defendant, and is not disputed, that the presses were not running at this time, and there is absolutely no evidence that the plaintiff visited the printing establishment for the purpose of examining the-plant, and advising Frank Tousey, or for any other definite purpose • so far as appears it, may have been mere idle curiosity. There is. certainly no evidence in the case that the plaintiff ever made any misrepresentations as to the capacity or strength of the building subsequent to his visit, to the plant of Frank Tousey, or that Hr. Blank
The suggestion of the respondent that the judgment may be sustained under the provisions of chapter 345 of the Laws of I860, incorporated into section 197 of the Real Property Law (Laws of 1896, chap. 547), is without force, as the statute does not apply to a case where the defect existed when' the lease was made and no fraud or misrepresentation is shown on the part of the landlord, or when it results from the neglect of the tenant to make ordinary repairs, or from deterioration due to the ordinary use by the tenant. (Meserole v. Hoyt, 161 N. Y. 59, 61, 62, and authorities there cited.)
The judgment and order appealed from should be reversed and a new trial granted, under the rule recognized in Sherman v. Ludin, (79 App. Div. 37).
All concurred.
Judgment and order reversed and new trial granted, costs to abide the event.