Edwards v. New York & Harlem Railroad , 32 N.Y. Sup. Ct. 634 ( 1881 )

Dykman, J.:

Owners and occupants of real property are called on for the exercise of ordinary care and diligence to maintain their premises in safe condition for access to all persons coming thereto legitimately. This obligation, however, does not rest on the owner where he has made an entire surrender of premises to a lessee, unless indeed they are let for a purpose for which they are known by him to be unfit, or have so fallen into decay as to become a private nuisance. If, therefore, injuries result from defects in demised premises to persons induced to visit them by the tenant, he, and not the landlord, is responsible for the injuries, even though the defects existed at the time of the execution of the lease. If premises are not unsafe at the time of the lease, and only become so by the manner of their use by the lessee, the landlord incurs no responsibility by reason thereof. Finally, the lessee in possession is responsible for injuries resulting from defects in the premises, and the lessor, in the absence of fraud or contract to repair, is not liable to the tenant or others for their condition. (Sherman and Redfield on Negligence, §§ 498, 503; Jaffe v. Harteau, 56 N. Y., 401; Clancy v. Byrne, 56 id., 132; Swords v. Edgar, 59 id., 34; Ditchett v. Spuyten D., etc., Railroad, 67 id., 427.)

There is no implied covenant or warranty on the part of a lessor ■of real property that the premises are fit for occupation or use, and unless the lessee protects himself by covenants he takes all the risk of its quality and condition, and among such hazards is the responsibility to strangers who come to the premises by his invitation.

Scrutinized in the light of these principles the case of the plain-tiff is found wanting. At the time the defendant leased the garden where the plaintiff received his injuries it was in safe condition for all uses to which it had been applied. It was neither unsafe nor a nuisance, and the defendant made no agreement for change or repair. The lessee might make alterations. The lessor had no-notice of defects. The plaintiff visited the garden on the invitation of the lessee and for his benefit, and the whole place was subject to the management of the lessee. It is true the defendant had an agent to look after the building, but his presence imposed no restraint or limitation on the lessee. He was in full control of the place, and congregated there an unusual number of persons, who were noisy and uneasy, and broke down a platform unsuitable for so much strain. There was no warranty of the suitableness of the place for the purposes for which it was used, and the premises had not become a nuisance at the time of the demise, and the injury arose neither from the nonfeasance nor the misfeasance of the defendant.

Reliance is had by the plaintiff on the case of Camp v. Wood (76 N. Y., 95), but the similarity to this is not sufficient. There the defendant owned the building and let it for a night for the purpose of a dance, and it was admitted by the pleadings that the public were invited to the hall with his consent, and were admitted on application and payment of a fee, and so the defendant himself held out to the public that it was safe, and the plaintiff and others were there on his invitation. He was, therefore, within the first principle stated above.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Gilbert, J., concurred.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.