Mary I. Jaffe, Appellant, v. Henry Harteau, Respondent

Mary I. Jaffe, Appellant, v. Henry Harteau, Respondent. (Argued April 16, 1874; decided April 28, 1874.) A lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to the lessee or others lawfully upon the premises for their condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they are apparently intended. Certain premises of defendant were sub-let to plaintiff’s husband and occupied by the latter as a residence for himself and family. Plaintiff was injured by the explosion of a boiler in the kitchen. Some evidence was given tending to show that the explosion would not have happened had there been a safety-valve to the boiler. It did not appear that defendant knew of or had any reason to suspect any defect, or lhat any danger was to be apprehended from the use of the boiler for the purpose intended. Held, that the facts did not establish any liability on the part of defendant, and that the complaint was properly dismissed. Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiff entered upon an order dismissing the complaint upon trial at the circuit, and affirming an order denying a motion for new trial. The action was brought by plaintiff to recover damages for injuries done to her by the explosion of a kitchen boiler in the house Ho. 588 Washington avenue, Brooklyn. The defendant was the builder and owner of the said house and had leased the same to one Tan Duzer. Plaintiff is the wife of Alfred S. Jaffe who had hired a portion of the premises from Tan Duzer, and the Jaffe family were occupying the same as their dwelling-house. The house was constructed for the use of two families; and the kitchens, which contained the boilers used by the two tenants, were in the top of the house. One main pipe supplied both boilers with cold water. The plaintiff, at the time of the explosion, was engaged in cooking in her kitchen where the boiler which exploded was placed. , Plaintiff’s evidence tended to show that the explosion might have been avoided had the boiler been supplied with a safety-valve. Eo evidence was given that defendant knew, or had reason to suspect, that the boiler was improperly constructed. Amasa J. Parker for the appellant. The relations between defendant and plaintiff imposed on him the duty of using proper care in putting up and maintaining the boiler. (Peck v. Ingersoll, 3 Seld., 528; Taylor L. and T., § 390.) The case is precisely the same as if plaintiff had been the original lessee. (Erdly v. Haggerty, 20 Penn., 387; Coughtry v. Globe Woolen Co., 56 N. Y., 124; Eakin v. Brown, 1 E. D. S., 36, 44; Todd v. Flight, 9 C. B. [N. S.], 377; Jackson v. Dickson, 1 Daly, 178; Benson v. Suarez, 43 Barb., 409; Rex v. Pedley, 1 A. & E., 380.) When one does a legal act in such a careless and improper manner that injury to third persons may ensue, he is answerable for the consequences which may naturally result, although he did it without intent that injury should result. (Scott v. Shepherd, 3 Wils., 403; Gibbons v. Pepper, 1 Ld. Ray., 38; Illidge v. Goodwin, 5 C. & P., 190; Lynch v. Nurdin, 1 Q. B., 29; Thomas v. Winchester, 6 N. Y., 397.) Where a party has erected a nuisance and afterward parts with possession of the premises, he is answerable for its continuance where he continues to derive a benefit from the nuisance, as by demising premises and receiving rent. (Roswell v. Prior, 2 Salk., 460; S. C., 1 Ld. Ray., 713; Blunt v. Aiken, 15 Wend., 522; Waggoner v. Jermaine, 3 Den., 306; Bellows v. Sackett, 15 Barb., 103; Benson v. Suarez, id., 409; Moody v. Mayor of N. Y., 43 id., 282; Thompson v. Gibson, 7 M. & W., 462; Davenport v. Ruckman, 10 Bosw., 20; S. C. affirmed, 37 N. Y., 574.) John H. Bergen for the respondent. The relation of landlord and tenant did not exist between the parties. (Hart v. Windsor, 12 M. & W., 68, 84.) The maxim caveat emptor applies to the contract in this case. (O'Brien v. Capwell, 59 Barb., 497; McGlashan v. Talmadge, 37 id., 314; Cleaves v. Willoughby, 7 Hill, 83; Howard v. Doolittle, 3 Duer, 464; Dutton v. Gerish, 9 Cush., 89; Gott v. Gourdy, 22 E. L. and Eq., 173.) To sustain a recovery it is essential to establish that the defendant owed some clear, specific legal duty to the party injured, which was violated. [Nicholson v. Erie R. Co., 41 N. Y., 529.) The words of letting do not imply a contract for any particular state of the property at the time of the demise, or that the property shall continue fit for the purposes for which it is demised. (Arden v. Pullan, 10 M. & W., 321; Sutton v. Temple, 12 id., 52; Keats v. Cadogan, 10 C. B., 591; Robbins v. Jones, 15 id. [N. S., 1863], 221; Gott v. Gaudy, 2 El. & B., 845; Hazlett v. Powell, 30 Pa. State, 293.) [MAJORITY — Grover, J.] Grover, J. The plaintiff failed in establishing any liability of the defendant for the injury complained of. The injury was caused by the explosion of a boiler in an attic kitchen, in a building erected and owned by the defendant, which he had leased to Van Duzer for a term of years, a part of which, including the kitchen, had been sub-let by the lessee to the plaintiff’s husband, by whom it was, at the time, occupied as a residence for himself and family. There was some evidence given tending to show that the explosion would have been prevented had there been a safety-valve properly fixed in the boiler, but none that the defendant knew, or had any reason to suspect, that the boiler was improperly constructed as it was, or that any danger was to be apprehended from its use for the purpose for which it was intended. The lease of the defendant to Van Duzer contained no covenant of the latter to make any repairs of the premises, nor was there any sufficient proof of any such agreement on his part. The defendant having leased the premises to Van Duzer incurred the same liability to his sub-tenants for the safety and sufficiency of the premises for use for the purposes for which they were intended as they were under to him. (Coughtry, adm., v. The Globe Woolen Co., in this court [not rep.].) It is not claimed by the appellant’s counsel that the' obligation to a sub-tenant is, in this respect, any greater than that to the lessee. The fact that the building was erected by the defendant upon a lot previously owned by him imposes no greater obligation than would have existed had he acquired title by purchase, or in any other way, after the erection of the building. The question then is, whether a lessor of buildings, in the absence of fraud, or any agreement to that effect, is liable to the tenant or others, lawfully npon the premises, by his authority, for their condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they were apparently intended. This question must be regarded as settled by authority. In the following cases it-was held that no such liability existed : Cleves v. Willoughby (7 Hill, 83); O’Brien v. Capwell (59 Barb., 497); Hart v. Windsor (12 M. &. W., 68); Keates v. Cadogan (10 Com. Bench, 591); Robbins v. Jones (15 Com. B. [N. S.], 221); Leavitt v. Fletcher (10 Allen [Mass.], 119). Godley v. Hagerty (20 Penn., 387), cited by the counsel for the appellant, as sustaining a contrary doctrine, was disposed of upon the peculiar facts of the case. It has not been understood by the courts of that State as holding the doctrine contended for by counsel. (See Hazlett v. Powell, 30 Penn., 293.) In the former, some importance was attached to the fact that the building was erected by the defendant. This may have been regarded as proper in that case, as tending to show him guilty of fraud. But nothing; of the kind, is imputed to the defendant in the present case. The cases cited by the counsel for the appellant, holding that one who erects a nuisance upon his premises and afterward parts with the possession of the locus in guo is still liable for injuries caused by the- nuisance, have- no application to this case. There is no reason for holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises, that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor. The complaint was rightly dismissed by the trial judge, and the judgment of the General Term, affirming the judgment entered thereon, must be affirmed with costs. All concur. Judgment affirmed. Ante, p. 124.