Suydam v. . JacksonSuydam v. . Jackson
I am of opinion, therefore, that neither the benefits nor burdens of this covenant run with the land, and that the judgment should be affirmed with costs.
All concur.
Judgment affirmed.
The provisions of the act in reference to the rights and liabilities of lessors and lessees (chap. 345, Laws of 1860), relieving a tenant from the payment of rent of a building which, without fault or negligence upon his part, shall have been destroyed or so injured by the elements or other cause as to be untenantable, have reference to a destruction or injury resulting from some sudden and unexpected action of the elеments or other cause, and not to the gradual deterioration and decay produced by the ordinary action of the elements. It does not affect the common-law rule requiring the tenant to make ordinary repairs.
(Argued June 17, 1873; decided September term, 1873.)
APPEAL from judgment of the General Term of the Court of Common Pleas for the city аnd county of New York, affirming a judgment in favor of plaintiffs entered on a verdict.
This action was brought to recover a quarter‘s rent alleged to be due under a lease of certain premises situate in the city of New York.
On the 30th of March, 1866, the plaintiffs leased to the defendant the store known as No. 48 Front street, in the city of New York, for the term of three years from the 1st day of May, 1866, at the yearly rental of $2,600, payable quarterly. The lease contained no covenant to repair on the part of the landlord, but that the Croton water and gas-pipes were to be kept in repair by the lessee. The demised premises consisted of a store five stories high, the main floor being about seventy feet long; in the rear of the first floor there
At the conclusion of his evidence the court directed a verdict for the plaintiff; exceptions were ordered to be heard in the first instance at the General Term.
Samuel Hand for the appellant. Title to rent is founded on the presumption that the tenant can enjoy the demised premises during the term. (Pothier Cont. de Louage, pt. 3, ch. 1, n. 139; Dig. lib. 19, tit. 2, b. 15, § 2; Novel 14, cap. 1; Grotius, lib. 2, cap. 12, § 18; Civil Code La., Art. 2, 667; Ripley v. Wrightman, 4 McCord, 447; Graves v. Berdan, 26 N. Y., 498.) The covenants expressed clearly excluded any implied ones. (Burr v. Stenton, 43 N. Y., 462.)
Edmund Wetmore for the respondents. The common-law rule is that, upon a lease for years with a covenant to pay rent, the rent is payable at the end of the term, even if the premises are destroyed by unavoidable casualty. (Walton v. Waterhouse [note], 2 Saund., 422, marg. page; Hallett v. Wylie, 3 J. R., 44; Belfour v. Weston, 1 T. R., 310; 3 Kent‘s Com., 465, marg. page.)
EARL, C. The sole defence to this action is based upon the statute (
The roof of the small extension, in the rear of the main building, became gradually out of repair so as to leak badly, and the sole question for us to determine is, whether the demised premises were thus “injured” within the meaning of the statute. The leaking was not caused by any sudden, unusual, or fortuitous circumstance, but seems to have been caused by gradual wear and decay. The courts below held that the case was not within the statute, and that the lessee remained liable for the rent.
To be able properly to understand this statute, it is well to see what the common law was before it was enacted, and to ascertain, if we can, the mischief it was intended to remedy. At common law the lessor was, without express covenant to that effect, under no obligation to repair, and if the demised premises became, during the term, wholly untenantable by destruction thereof by fire, flood, tempest or otherwise, the lessee still remained liable for the rent unless exempted from such liability by some express covenant in his lease. (Walton v. Waterhouse, 3 Saund., 422; Hallett v. Wylie, 3 John., 44; Graves v. Berdan, 26 N. Y., 498; 3 Kent‘s Com., 465.) But the lessee was under an implied covenant, from his relation to his landlord, to make what are called “tenantable repairs.” Comyn, in his work on Landlord and Tenant,
But it was considered a hard rule that the tenant who had from ignorance or inadvertence failed to protect himself by covenants in his lease, should be obliged to pay rent in cases where, from fire, flood or other fortuitous causes, the premises were destroyed or so injured as to be untenantable, and I am of opinion that it was to change this rule and cast the misfortune upon the owner of the demised premises that the law was enacted. The statute provides for two alternatives
I am, therefore, of the opinion that the courts below did not err in the construction which they gave to this statute, and this conclusion is not without the support of learned judges. (Bloomer v. Merrill, 1 Daly, 485; Austin v. Field, 7 Abb. [N. S.], 291.)
The judgment must be affirmed, with costs.
REYNOLDS, C. When the legislature attempts, by positive enactment, to remеdy an evil that has apparently grown up with the common law, it may be fairly assumed that the evil to be cured is fully appreciated, and that by apt words the remedy is provided for, as it is, and should be, understood by the law-making power. It is very clear to my mind that the provisions of the statute of 1860 (chap. 345) were intended to relieve a tenant from the payment of rent where the demised property was destroyed by fire, or from some other kindred cause, resulting from some sudden and unexpected action of the elements. The rule of the common law had become very obstinate, that, in such calamities, the tenant must be the sufferer, unless in his lease he had provided against it, which was very seldom done, as the contingency was never at the time thought of by either party. The courts, although feeling constrained to observe the rule, have
The statute of 1860 never was intended to have any effect upon the rule of the common law requiring the tenant to make ordinary repairs. In that rule there never was any hardship, and there was no occasion for special legislation in regard to it. The results of ordinary decay, or as it is sometimes said “wear and tear,” would ordinarily be visible only to a tеnant. The landlord having parted with his estate for a year or term of years, had no right to enter upon his property without the permission of his tenant, unless upon some default of the latter he entered under the authority of law.
In construing a statute which operates to change a principle of the common law, we are to be guided by rules of construction that have been long approved, and the most prominent of which, on the subject of statutes altering the common law, is that adopted by Chief Justice TREVOR in the case of Arthur v. Bokenham in the reign of Queen Anne (11 Modern, 148, 161), which, in some form, has been repeated in the most reliable digеsts, and supported by many prior and subsequent adjudications in the courts. He said that “the general rule in the exposition of all acts of parliament is that, in all doubtful matters, and where the expression is in general terms, they are to receive such a construction as may be agreeable to thе common law in cases of that nature, for statutes are not presumed to make any alteration in the common law, further or otherwise than the statute does expressly declare; therefore, in all general matters the law does not presume the act did intend to make any alteratiоn, for if the parliament had had that design they would have expressed it in the act.” (See also Dwarris on Statutes, 564; Potter‘s Dwarris on Statutes and Constitutions, 184, 185,
It was urged on the part of the defendant that he was under no obligation to repair the roof of the building, so as to stop the leakage complained of, because, by reason of some express covenants in the lease relating to specified repairs to be made by the tenant, no further obligation on his part, tending in that direction, could be implied. It is, perhaps, sufficient to say, in answer to this objection, that no such question appears to have been raised on the trial. But I find no express сovenants in the lease relating to the subject of repairs, except as to the “Croton water and gas-pipes and fixtures,” and that the defendant should conform to the corporation ordinances in relation to the closing of hatchways and guards thereof, and keep the guards in repair, and pay all fines imposed for any violation of the ordinance in respect thereto. These are not in any sense ordinary repairs, within the meaning of the common-law rule. They are extraordinary and exceptional, and, unless specially provided for in the lease, the defendant would not have incurred the obligation, and they afford no support to the point taken.
It is finally said that the case ought to have been submitted to the jury, but upon what question the case does not disclose. There was no conflict of evidence or dispute of facts. The dispute arose about the obligation to make, what seems very clearly to have been, a mere ordinary repair, and, as we think the duty was upon the defendant, the judgment must be affirmed, with costs.
All concur.
Judgment affirmed.
SICKELS—VOL. IX. 58