59 N.Y. 28 | NY | 1874
The defendants in this action were the owners of the half of the pier, upon which the accident befell, by which the injury was done to the plaintiff's intestate. They were not then in the actual occupation of it. They had leased it to others for a rent reserved to themselves. Their lessees were in the actual use and occupation of it. They had taken a covenant from their lessees to keep the pier and bulkhead in order and repair at their own cost. It is established by the verdict of the jury, under the charge of the court, that the pier was in a defective condition on the 1st day of May, 1865. That was the day of the oral lease from the defendants. The oral lease then made was afterward merged in a written lease. By the verdict it was also established, that the injury was received in consequence of the insecure condition of the pier, which existed on the day above named, and that the pier was demised by the defendants when in that insecure condition. *31
We think it is clear that the intestate was lawfully upon the south half of the pier. It may be that it was not a public place or highway in the fullest sense of those terms. It was, indeed, private property to a certain degree. (Vandewater v. The Cityof New York, 2 Sandf., 258; Thompson v. The Mayor, etc.,
The defendants were the owners of the pier, and the lessors of it, to those who, as occupants, were primarily charged with this duty. They leased it to those occupants, in contemplation of the use to which it was to be put, indeed, so that such use might be made of it. As to the defendants, then, the plaintiff's intestate was lawfully upon the pier, and as to them, it was to him as if a public place or highway, upon which he had right to go, and to remain while engaged there in his ordinary calling. In this regard then, the plaintiff's intestate was free from negligence contributing to the injury received. In other respects the question of contributory negligence was fairly submitted to the jury, upon the conflicting *33 testimony, as to the condition of the pier apparent to those going upon it, and upon the conflicting testimony as to the weight which had been put upon it, and as to what should be its capacity to uphold a burden.
It is true, that there was testimony, that the stevedore in whose employ the intestate was, or that the foreman under whom the intestate was laboring, was warned that the pier was becoming too heavily loaded. There is no proof that this warning came to the knowledge of the intestate (Godley v. Haggerty, 20 Penn. St., 387); nor is there any circumstance in the case which made notice to the stevedore or his foreman a notice to the intestate, so as to charge him with contributory negligence; nor is it certain, from the proofs, that if the pier had been in sound condition it would not have held up all the iron and other weight which had been laid upon it. The intestate had a right to assume, as against those bound to maintain the pier in good condition, that it was in a fair and ordinary state of security and strength, and able to sustain all the weights of which such a structure is usually capable. Hence we hold, that the first point of the defendants, that the plaintiff's intestate was liable to the imputation of contributory negligence, is not maintained.
It has been already stated, that the defendants demised the premises to other parties, binding them in a covenant to keep the pier in good order and repair. The defendants were not in possession of the premises at the time of the accident. It is claimed that thereby the defendants are under no liability to the plaintiff. We have shown that this pier, so far as the intestate was concerned, was in the nature of a public place, whereon he was lawfully engaged. We have shown that it was of such nature that there was as to him a duty resting somewhere, to keep this pier in a reasonably sound and secure condition. Primarily, this duty is upon the occupants of the pier, and, in the absence of any covenant from their lessors to keep the same in repair, that duty, as to all defects arising after their tenancy began, would altogether rest upon them, and there would be no liability upon the *34
lessors. But there may be a state of facts which will cast a liability upon the lessors also. The neglect of this duty, the suffering the pier to fall into such a state of decay, as to become dangerous to those lawfully coming upon it, is the creation of a nuisance. For a private nuisance is any thing unlawfully or tortiously done to the hurt or annoyance of the person, as well as the lands, tenements and hereditaments of another. (3 Blk. Com., by Sharswood, 215.) Where there has been a nuisance of continued existence upon demised premises, the lessor and the lessee may both be liable for damages resulting therefrom. The lessee in the actual occupation of the premises, if he continues the nuisance after notice of its existence and request to abate it, and the lessor, if he at first created it, and then demised the premises with the nuisance upon them, and at the time of the damage resulting therefrom, is receiving a benefit therefrom by way of rent or otherwise. (Roswell v.Prior, 2 Salk., 459; S.C., more fully reported, 12 Mod., 635;Staple v. Spring,
It is urged that, by taking from the lessees a covenant to keep the premises in good order and repair, the defendants have protected themselves from liability to the plaintiff. As to this, it is first to be observed that by giving this covenant, the lessees did not increase nor change their liability to the plaintiff's intestate, nor to that portion of the public which might lawfully use their pier. As tenants and occupants of the pier they were liable, though no covenant had been given. Their relation to strangers is in no wise changed by the existence of the covenant, so that the question is, whether the lessor of premises, demised in a ruinous state, may shield himself from liability to strangers, for damage resulting from their defective condition, by taking to himself a covenant like that here found. It is plain from what we have before said, that there was once a duty upon the defendants, as owners of the pier, to maintain it in a safe condition. They did not do this. They leased it in its unsafe state, and took a rent for the use of it. Thereby they became liable to any one lawfully upon it, who suffered damage in consequence of its state of insecurity. The pier was unsafe on and before the day of the lease. The defendants were certainly, at that time, charged with the duty of putting and keeping it in a safe condition. In the language of the court, in Roswell v.Prior (as reported 12 Mod., 635), "this action is well brought against the erector (of a nuisance), for before his assignment over, he was liable for all consequential damages and it shall not be in his power to discharge himself by granting *37
it over." Can the fact that the granting over, is upon the taking back a covenant to keep in repair, work a discharge of that liability? The person injuriously affected by the ruinous state of the premises demised has no right nor privity in the covenant. He is not given thereby a right of action against the lessee greater nor more sure than he had before. He has the right without the covenant. The covenant is a means by which the lessor may reimburse himself for any damages in which he is cast by reason of his liability. But it is an act and obligation between himself and another, which does not remove nor suspend that liability. It is not so, that a person upon whom there rests a duty to others may, by an agreement solely between himself and a third person, relieve himself from the fulfillment of his duty. Surely an ineffectual attempt to fulfill it would not; as if in this case insufficient repair of the pier had been made by a builder who had contracted with the lessor to do all that was needful to make the pier secure for all comers. A covenant taken from a lessee, to keep in order and repair, is no more effectual than a contract with a builder to the same end. Both may afford an indemnity to the lessor, but neither can shield him from liability. The appellants cite Radway v. Briggs
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The judgment appealed from should be affirmed, with costs.
CHURCH, Ch. J., ALLEN and RAPALLO, JJ., concur; GROVER, ANDREWS and JOHNSON, JJ., dissent.
All concur in proposition that if defendants are liable the covenant of their lessees to repair would not shield them from liability.
Judgment affirmed.