Ward v. Kelsey — 38 N.Y. 80

Majority

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Robert M. Ward and Walter S. Gove, Respondents, v. Charles Kelsey, Appellant.

Headnote

Terms or Lease. Necessary repairs. In an action by lessees of a warehouse to recover the expense of caulking the floors to prevent leakage from one floor to another, under a lease wherein the lessor agreed to “ do all necessary repairs upon said premises and pier, within reasonable time after notice to him ” by the lessees, the judge charged, among other things, that, if the floors were tight, 'as originally constructed, and became leaky without fault of the lessees, it was the duty of the lessor, upon proper notice,.to restore them to their former tightness, if the business for which the stores were let reasonably required the floors to be tight. The jury found for the plaintiff, which, under the charge, was equivalent to finding, that the defendant failed to keep the buildings up to their original condition.

Whether the judge might not properly have submitted to the jury, as a question of fact, the necessity of water-tight floors in such warehouses, and hence, the duty of the lessor to have so constructed them, qwere.

This was an.action brought by the lessees of a warehouse building in Brooklyn against the lessor to recover the expense of caulking the floors of the building, to prevent leakage from one story to another, whereby the goods in store were exposed to injury. The lease contained the following clause: “And the said party of the first part hereto (the lessor) hereby agrees that he will do all necessary repairs upon said premises and pier, within a reasonable time after notice to him by the said parties of the second part requiring him to do so.” In September, 1859, the lessees gave notice that the floors leaked, and desired them to be repaired and made tight, and again in October of the same year. The lessor -neglecting to do it, the lessees themselves caused the repairs to be made, and brought this action to recover the expenses thereof. It was testified that the floors were tight when the lessees took possession of the-building. It was testified, that, after a few months occupancy, the same became open, and the lessor caused the same to be repaired and tightened. Whether he did it upon the claim of right by his lessees, or upon an appeal to his generosity, was a point upon which the parties differed in their testimony.

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The judge charged the jury, that, if the floors, as originally constructed, were, reasonably sufficient to answer the purposes specified, the defendant was not bound to improve the floors by caulking or other means, but was only bound to keep the floors in as good condition as when constructed; that he was not bound to keep them in the condition of first class warehouses. He further charged, that, if the floors were tight, as originally constructed, and, from shrinking or other cause without the plaintiffs’ fault, became leaky, it was the duty of the' defendant, upon proper notice, to restore them to their former state of. tightness, provided the business for which the stores were let, reasonably required the floors to be tight. The jury found for the plaintiffs, and the G-eneral Term of the second district affirmed the judgment entered upon their verdict. The defendant now appeals to this court.

W. Britton, for the appellant.

According to the decision in Myers v. Barns ( 36 N. Y. 269 ), the covenant in question required the defendant not only to keep the premises in good repair, but to put them in that condition. It might well have been submitted to the jury whether, in a warehouse of the size, condition and location of the one in question, water-tight floors were not indispensable, and whether it was not, there-, fore, the duty of the defendant so to complete his building. The judge did not, however, go to the length of either of these propositions. He simply charged that it was the duty of the defendant to keep the floors tight, if they were so when originally constructed, and if the business of the plaintiffs required it. This was a construction of the contract to repair, quite favorable to the defendant, and to which he took no exception on the trial. He can, therefore, make none now.

The appellant insists in his first point, that the defendant was not bound to caulk .the floors, thereby making them water-tight, which they before were not._ I understand the

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judge’s charge to be in accordance with this theory. He charged that the defendant was not bound to keep the stores in the condition of first class warehouses, and that he was not bound to improve the floors by caulking them, but was only bound to keep them in as good condition as when constructed. The case went to the jury upon this theory, and they, doubtless, found that the defendant had failed to keep the buildings up to their original condition.

Judgment should be affirmed with costs.

Judgment affirmed.