This is an action of contract wherein the plaintiff seeks to recover the expenses of replacing a plate glass window broken by a third person, who ran into it from the street. The window was on the first floor next to the sidewalk, formed a part
The lessors refused after demand by the lessee to replace the window, whereupon the latter did it at its own expense and brings this action to recover the cost.
It is settled that a lease of a floor or story of a building includes its outer walls. Lowell v. Strahan, 145 Mass. 1. Conahan v. Fisher, 233 Mass. 234, 236. In the former ease it was said at page 8 that the words “floor” or “story” “differ somewhat from the word ‘room.’ . . . The word ‘room’ includes a description of the perpendicular as well as of the horizontal planes which bound the parcel of the house described by it, and excludes the outside of lateral walls, at least when they constitute the walls of another room, as clearly as the words ‘first floor’ exclude the flooring of the story above it.” That statement does not reach to the facts of the case at bar.
Apparently in the case at bar the window was of considerable size, upon the street floor, adjacent to the sidewalk. It was essential in order to light the room leased. Its exterior surface was as indispensable to this end as its interior surface or its transparent substance. It would have been incompatible with the purposes of the lease and the valuable use of the room by the
The liability of the landlord in Woodman v. Shepard, 238 Mass. 196, rested upon the fact that the sign which caused the injury was fastened in part at least to portions of the building in his exclusive control.
Since the plate glass window was included within the lease, the obligation to repair rested upon the tenant and not upon the landlord in the absence of some contract covering the subject. “It is a familiar rule of law, that, in the absence of an express agreement to the contrary, the owner of a tenement let to a tenant is not bound to make repairs upon it during the term.” Szathmary v. Adams, 166 Mass. 145, 146. Fiorntino v. Mason, 233 Mass. 451. Cases like Kirby v. Boylston Market Association, 14 Gray, 249, and Milford v. Holbrook, 9 Allen, 17, are not applicable.
The breaking of the window through accident or negligence by an outsider, for whose conduct neither the landlord nor the tenant
It follows that the defendant is under no liability to the plaintiff for replacing the window. Bigelow v. Collamore, 5 Cush. 226, 231. Kramer v. Cook, 7 Gray, 550. Roberts v. Lynn Ice Co. 187 Mass. 402, 407. Cases like Stockwell v. Hunter, 11 Met. 448, and Shawmut National Bank v. Boston, 118 Mass. 125, have no pertinency in this connection.
Exceptions overruled.
