O'Brien v. Capwell , 59 Barb. 497 ( 1870 )

By the Court, E. Darwin Smith, J.

This action is one for negligence. It was brought, .as the cause of action is stated in the complaint, upon the ground that the defendant, being the owner of the premises when the plaintiff sustained her injury, “had negligently, carelessly and wrongfully allowed the piazza, platform, railing and stairs,, upon said demised premises, to become decayed and out of repair; and that by reason of such decay and want of repair, the same were unsafe at the time of the accident, and had been so unsafe for a long time previous thereto, and unfit for use, as the defendant well knew, and were .carelessly, negligently and wrongfully allowed to so remain, by said defendant.” The charge of the judge, at the trial, substantially affirmed this view, in respect to the defendant’s, negligence, and the verdict under the charge was doubtless based upon this ground. The negligence thus imputed and found, is the negligence of mere omission of duty. In such case, where no affirmative fault, misfeasance or affirmative wrong was committed by the defendant or is imputed to him, it is essential to sustain a recovery, to establish that the defendant owed some clear, specific, legal duty to the party injured, which was violated. (Nicholson v. The Erie R. Co., 41 N. Y. 529.) Upon this point, I think it is clear that the defendant owed no legal duty to the plaintiff. There were not, as between them personally, any relations involving reciprocal duties, more than existed as between mere strangers. But assuming, as I think we should upon this point, that she was a servant of the. tenant, and stood in his place, the question is then narrowed to the simple inquiry whether there existed any duty on the part of the defendant to his tenant, which would have entitled him to maintain this action if he had suffered the injury, instead of his servant. 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; and that the principle of caveat emptor applies to all contracts for the letting of property, real, personal or mixed, as much as to contracts ■ of sale, with one or two recognized exceptions, "which do not apply in this case. (McGlashan v. Talmadge, 37 Barb. 314. Cleves v. Willoughby, 7 Hill, 83. Howard v. Doolittle, 3 Duer, 464. Dutton v. Gerish, 9 Cush. 89. Gott v. Gourdy, 22 Eng. L. and Eq. 173.)

In this case there was no covenant on the part of the landlord to repair. The premises were leased in April, for one year, and had been occupied safely from May 1st, by the tenant, until the time of this accident, which occurred on the-31st of October following. The tenant must have known the situation of the premises long before the accident, and his wife testified that she saw that the lattice work and stairway which gave way was decayed, when she first moved into the house; that the premises were in the same condition when they moved in as when the accident happened; and that she spoke to the defendant early in May on the subject. The defendant being under no obligations to repair the premises, and their condition being equally as well known to the tenant as to him, there is no basis for an action of negligence, by the tenant, or any servant of his, or person standing in his place, arising out of the fact that they were out of repair.

[Second Department, General Term, at Poughkeepsie, June 14, 1870.

The motion for a nonsuit should have been granted, at the trial, and the judgment should therefore be reversed, and a new trial granted, with costs to abide the event.

J. F. Barnard, P. J., and E. D. Smith and Daniels, Justices.]