Sonn v. Weissmann , 61 N.Y.S. 78 ( 1899 )

MaoLean,'J.

First as counterclaims (in which guise they were1 withdrawn voluntarily upon the trial), then as two separate defenses, the defendants pleaded, in answer to a claim for rent, due under an agreement of letting and hiring of the ground floor of a building in the city of Hew York, that the plaintiffs had failed to carry out the terms of the said agreement on their part to be performed, had failed to keep the premises in a tenantable condition, and had failed to repair and keep repaired, as agreed by them, the ceilings, the plumbing and steam pipes, by reason whereof water was allowed to come down upon the goods of the defendants, to their damage in the sum of $1,200; and furthermore, that, through the negligence of the plaintiffs respecting the pipes and ceilings, water was allowed to come through the floor from above, to the damage of the defendants’ merchandise, in the sum of $1,200. It appeared, however, from the agreement introduced in evidence, that the plaintiffs, the landlords, had not covenanted to keep the premises in a tenantable condition or to make repairs, and that they had carefully provided that they should not be liable for any damage or injury by water which might be sustained by the tenants, or by reason of the breakage, leakage, or obstruction of the water, or soil, pipes in or about the demised building. Upon this, the learned trial justice properly excluded the evidence offered by the defendants respecting such damage, and which could only have been received under some agreement which the defendants had not alleged, and directed a verdict for the plaintiffs for the amount of the rent admittedly due. The judgment should be affirmed, with costs.

Freedman, P. J., and Leventritt, J., concur.

Judgment affirmed, with costs.