109 N.Y.S. 15 | N.Y. App. Term. | 1908
Lead Opinion
The action proceeded in form as one to recover damages for physical injuries sustained by the plainliff in consequence of the defendant’s agent’s willful misrepresentation and deceit, and resulted in a judgment for the plaintiff in a substantial amount.
The plaintiff was a monthly tenant of certain rooms in the defendant’s premises. After the recommencement of the term, and before its expiration, on the occasion of the defendant’s agent’s call for the rent, the plaintiff directed the agent’s attention to the decrepit and threatening condition of the ceiling in one of the rooms, expressing her apprehension of injury therefrom and her intention to vacate the rooms. She was assured by the agent that he had caused the ceiling to be examined and tested and that it had been found to be secure. Later, during the same term, the ceiling fell upon the plaintiff, who, relying upon these assurances, had remained in the occupancy of the rooms, causing physical injuries to her. Upon the trial it appeared from sufficient proof that the ceiling had not been inspected or tested, and the agent’s representations that it had were knowingly untrue as a matter of fact, and so the court below found.
An action for damages for fraud and deceit does not necessarily rest in any actual or contemplated contractual relation
True, the. plaintiff’s injuries were not the immediate result of the defendant’s agent’s deceit but of an intervening cause, the fall of the ceiling. They were, however, the indirect result of the deceit, a natural and probable effect of the agent’s wrongful conduct, one against which the fraudulent assurances were made and from which the plaintiff expected to escape in her reliance upon such assurances. Her dam
From the testimony of the defendant’s witness, Harris, it appears abundantly that the latter was the agent and alter ego' of the defendant in respect to the premises wherein the plaintiff’s rooms were located; and, the agent’s representations having been made within the scope of his duties, the defendant’s answerability therefor is not debatable. Am. & Eng. Ency. of Law (2d ed.), 1158; Sanford v. Handy, 23 Wend. 263; Weed v. Panama R. Co., 17 N. Y. 362; Smith v. Tracy, 36 id. 79, 83; Nowack v. Metropolitan St. R. Co., 166 id. 433.
Judgment should be affirmed, with costs.
Gildersleeve, J., concurs.
Dissenting Opinion
(dissenting.) In O’Brien v. Oapwell, 59 Barb. 497, 504, says the court: “As between landlord and tenant, I think the law is well settled when there is no fraud or false representations or deceit, and in the absence of an express warranty or covenant to repair, that there is no implied covenant that the demised premises are suitable or fit for occupation, or for the particular use which the tenant intends to make of them, or that they are in a safe condition for use.” ¡Neither an express warranty nor covenant to repair appears therein, but the plaintiff bases her claim, for an injury on ¡November 20, 1906, from the fall of a ceiling in premises she leased from the defendant, upon alleged false representations made to her by the agent of the defendant after she had become a monthly tenant, so becoming and continuing from August, 1906, to January 1, 1907.
The plaintiff testified she told the defendant’s agent, on or about September 1, 1906, that she was afraid the kitchen ceiling would fall and that he said it was all right and had Leen up there for a century; that two months later she told the same agent the cracks in the ceiling had become larger and bulged somewhat, but he said he had, and the landlord ha i had the ceiling tested, that it was all right and perfectly
¡Neither claiming nor showing representations or concealments prior to her hiring and entering into the possession of the premises, the representations claimed to have been made and claimed to have been relied on to her damage, to be actionable, must be so, because, in reliance thereon, she continued her tenancy. In order, however, to recover therefor she must prove representation, falsity, scienter, deception and injury. The absence of any of them is fatal to a recovery. Brackett v. Griswold, 112 N. Y. 454, 467. It does not appear anywhere that a test had not been made. If it be urged that the testimony of the plaintiff, that no one in her presence or to her knowledge called to examine the ceiling from August 1, 190'8, to January 1, 1907, proves anything, it equally proves her knowledge of its falsity, and so no deception at the time the representation was made. If the assurance by the agent, who denied it, of the safe condition of the ceiling be treated as the representation of a fact, her oAvn testimony, that the ceiling looked as though it would fall and that the representations of the agent did not seem i rue, likewise proves her knowledge and disproves her deception. As the condition of that ceiling was equally apparent to both parties herein, and the assurance of safety was apparently not an obligation of the defendant and so not peculiarly within his knowledge, “ the general rule is that, if the facts represented are not matters peculiarly within the party’s knorvledge, and the other party has the means available to himself of knoAving, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.” Schumaker. v. Mather, 133 N. Y. 590, 596. Therefore, and further because.
Judgment affirmed, with costs.