White v. Thurber — 29 N.Y. St. Rep. 204

Majority

p. 204

John J. White, App’lt, v. Horace K. Thurber, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Lease—Covenant bob quiet enjoyment.

A covenant for quiet enjoyment in a lease is not broken by the landlord entering to make needful repairs. The refusal of the tenant to permit the repairs to be made does not affect the legal right of the landlord to make repairs rendered necessary by the insecure condition of the premises.

Appeal from judgment dismissing the complaint

Action for breach of covenant of quiet enjoyment in a lease. In 1886, defendant leased to plaintiff certain premises in Brooklyn for five years and four months, with a privilege of renewal, plaintiffs covenanting to keep the building in repair. In May, 1886, the adjoining building, a corner one, was taken down by order of the department of buildings, when it was found that the party wall bulged and overhung and was in a dangerous condition. The department then condemned the wall and ordered the defendant to remove it. Defendant thereupon entered into a contract with one McMurray to take down the wall and erect a new one, which was accordingly done. Plaintiff remained in the premises during the time the work was going on, and brings this action to recover $6,500 for injury to his business, stock, etc., and

p. 205

because the new wall, being wider than the old, contracts the space he originally had.

James & Thomas H. Troy, for app’lt; H. Arlington, for resp’t.

The covenant of quiet enjoyment was not broken by the landlord 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 m 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.

Barnard, P. J., and Dykman, J., concur.