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White v. Thurber

8 N.Y.S. 661 Court N.Y. Gen. Term Decision date 1890-02-10 English

Delivered by Pratt, J.

Contents

Majority

p. 661
White v. Thurber.
(Supreme Court, General Term, Second Department.
February 10, 1890.)

Headnote

Quiet Enjoyment—Breach of Covenant.
An entry by a landlord to make necessary repairs on a building, on requirement of the department of buildings, is not a breach of a covenant for quiet enjoyment, though the tenant refuses to permit the repairs; and, where due care is taken to avoid interfering with the tenant while making the repairs, he cannot recover for injuries to his business caused thereby.
Appeal from special term, Kings county.
Action by John J. White against Horace K. Thurber for damages for an alleged wrongful entry on premises owned by defendant and occupied by plaintiff under lease. The entry was made by defendant, in pursuance of a notice served on him by the department of buildings of the city of Brooklyn, to repair a building. The complaint was dismissed, and plaintiff appeals.
Argued before Barnard, P J., and Dykman and Pratt, JJ.
James & Thomas H. Troy, (James Troy, of counsel,) for appellant. H. Aplington, for respondent.

The covenant of quiet enjoyment was not broken by the landlord’s entering upon the premises to make needful repairs. That covenant is directed to an eviction by title superior to that of the landlord, and is not violated by an unlawful trespass. But in this case the entry was not unlawful. It was in obedience to a high duty owed to society, viz., to keep the building in repair, that it would not injure people by its fall. The refusal of the tenant to permit the repairs to be made does not affect the legal right. It was proven, without dispute, that the landlord acted upon the requirement and notice of the department of buildings, and the evidence is to the effect that due care was taken to avoid interfering with the business of the tenant. Such injury as was caused to plaintiff’s business was rendered necessary by the insecure condition of the premises, and cannot be recovered for by action. Judgment affirmed, with costs. All concur.