49 N.Y.S. 962 | N.Y. App. Div. | 1898
The complaint alleges, substantially, that the plaintiff was a tenant of certain apartments in a building owned by the defendant in the city of New York, and that on the 4th of June, 1897,
The only relation between the parties is that of landlord and tenant. It is well settled in this state that no duty rests upon the landlord to repair premises which he has demised, or to keep them in tenantable condition, and that there can be no obligation to repair except such as may be created by the agreement of the landlord so to do. Witty v. Matthews, 52 N. Y. 512. Where such agreement has been made, the measure of damages for the breach of the contract is the expense of doing the work which the landlord agreed to do, but did not. A contract to repair does not contemplate that, as damages for the failure to keep it, any personal injuries shall grow out of the defective condition of the premises; because the duty of the tenant, if the landlord fails to keep his contract to repair, is to perform the work himself, and recover the cost in an action for that purpose, or upon a counterclaim in an action for the rent, or, if the premises are made untenantable by reason of the breach of the contract, the tenant may move Out, and defend in an action for the rent as upon an eviction. Myers v. Burns, 35 N. Y. 269; Sparks v. Bassett, 49 N. Y. Super. Ct. 270; 2 Tayl. Landl. & Ten. (8th Ed.) p. 381. The tenant is not at liberty, if the landlord fails to keep his contract to repair'the premises, to permit them to remain in an unsafe condition, and to stay there at the risk of receiving, injury on account of the defects in the premises, and then recover as for negligence for any injuries that he may suffer. Where the sole relation between two parties is contractual in its nature, a breach of the contract does not usually create a liability as for negligence. In such a case the liability of one of the parties to the other because of negligence is based either on the breach of some duty which'is implied as the result of entering into the contractual relation, or from the improper manner of doing some act which the contract provided for; but the mere violation of a contract, where there is no general duty, is not the subject of an action of tort. Courtenay v. Earle, 10 C. B. 83; Tuttle v. Manufacturing Co., 145 Mass. 169, 13 N. E. 465. As the result of this principle, we conclude that the plaintiff cannot maintain an action against the defendant to recover the damages which she has suffered, on the ground of the defendant’s negligence in failing to keep his contract to repair. Such is the weight of authority in this country. Miller v. Rinaldo, 21 Misc. Rep. 470, 47 N. Y. Supp. 636; Tuttle v. Manufacturing Co., supra; Flynn v. Hatton, 43 How. Prac. 333; Spellman v. Bannigan, 36 Hun, 174. The cases relied upon by the plaintiff are easily distinguishable. In White v. Sprague, 9 N. Y. St. Rep. 220, the plaintiff was employed