Jackson v. Paterno

The plaintiff leased an apartment from the defendant by a written lease in which it was described as “the apartment No. 62, on floor sixth of the house known and designated as ‘La Valenciennes,’ No. 404 West 116th street, in the city of New .York, borough of Manhattan, for the term of six and one-half months, to commence November 15, 1906, and to end May 31, 1907, to be occupied as a strictly private dwelling apartment for his family, consisting of his immediate family, and not otherwise,” which the plaintiff occupied for the term. The only method of heating the apartment was by radiators in ea.ch room connected with a boiler in the cellar of the building under the control of the landlord, and during the winter months the landlord undertook to furnish sufficient steam to heat the apartment. The plaintiff paid his rent and continued to occupy the apartment during the whole term. In March, before the term had expired, the plaintiff commenced this action to recover the damage sustained in consequence of a breach of what the complaint calls an implied covenant to heat the apartment, claiming that the heat furnished to the apartment was not sufficient, that several rooms could not be occupied during a portion of many days during the winter on account of lack of heat, and that his family were rendered uncomfortable in consequence of the low temperature of the apartment. The trial court awarded plaintiff a judgment fixing the damages at $100. This was reversed by the Appellate Term, which allowed an appeal to this court.

. Several interesting questions are presented on this appeal. The lease contains no reference to heating the demised premises, and there is no covenant on the part of the landlord to supply heat, or that the temperature of the demised premises should be maintained during the winter by the landlord. What was rented, however, was an apartment the rooms of which contained no provision for heating it, except that which was connected with the heating apparatus under the control of the landlord. It was rented for 6y2 months, from November 15th to May 31st, which included the winter months, and was rented to be occupied by the tenant as a strictly private dwelling for his family, and not otherwise. Considering the nature of the apartment, the method provided for heating it, and the use to which the apartment was restricted, it was rented as an apartment convenient for use as a dwelling for the family of the tenant. In this climate during the winter months an apartment without artificial heat of some kind cannot be occupied as a family dwelling. The premises were rented for a purpose which required that the apartment should be artificially heated. Unless the temperature, therefore, was maintained so that the apartment could be occupied for the purpose for which it was rented, they were not the premises that were leased and which the tenant was bound to occupy. It would seem, therefore, that after the lease was signed and before the tenant had taken possession, if he had discovered that the heating appliances were insufficient to keep the apartment in such a condition that it could be occupied by his family, he would have been justified in refusing to occupy the premises, and could have defended an action under the covenant to pay rent on the "ground that the landlord had never furnished him with such

As before stated, the lease is entirely silent as to heating the apartment. What the landlord did was to lease an apartment to the plaintiff to use as a residence for himself and his family. He made no agreement as to the temperature of the apartment. There was no undertaking on the part of the landlord to supply heat or to keep the apartment at any particular temperature. If the defendant failed to comply with his lease and furnish to the plaintiff the apartment that he had leased to him, the tenant was under no obligation to occupy the apartment; but, having continued to occupy it during the whole of the term for which it was leased, he was bound to pay the rent reserved, and in the absence of a covenant of the landlord to supply sufficient heat to maintain a particular temperature it seems to me that no action for damages would lie because the temperature was not that desired by the tenant. The obligation of the landlord of an apartment of -this character, where the landlord retains possession of a large part of the building, which is to be used in common by the tenants, undoubtedly imposes upon the landlord the duty of maintaining in good order and condition the portion of the building which the tenant has a right to use. Eor a violation of this duty the landlord would be responsible to the tenant for any damage that was sustained by him. If the halls, stairways, or elevators of the building are not maintained by the landlord in a proper condition for use, or if the walls or roof of the building are allowed from lack of repair to leak, so that the tenant’s property was injured, there would undoubtedly be an action for damages against the landlord, not, as I understand, upon the breach of an implied covenant, but because the landlord had failed to perform a duty which he assumes when he leased the apartment, and was liable for the damage that resulted. But there was no evidence that this heating apparatus was not sufficient to heat the apartment. All that appears is that for some unexplained reason the temperature of the apartment was not maintained, so as made it a comfortable residence for the plaintiff’s family during some portion of the winter; but, having continued to occupy the premises, he became liable for the rent, and for the mere discomfort which resulted from an insufficient temperature there was no cause of action.

If we assume, however, that there was a cause of action, and that

It follows that the determination appealed from must be affirmed, with costs, and judgment ordered for the defendant on the stipulation, with costs.

LAUGHLIN, CLARKE, and SCOTT, JJ., concur. PATTERSON, P. J., concurs in result.