Akerly v. White — 34 N.Y. St. Rep. 633

Majority

p. 633

Mary E. Akerly, Resp’t, v. Lewis B. White, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Landlord and tenant—Landlord not liable for defects in premises ASCERTAINABLE ON INSPECTION.

In an action for injuries to a member of the family of a tenant caused by defects in a stairway, where the whole building had been let to a single tenant, the court charged that if the stairs at the time of letting were weak to an extent that could be easily ascertained upon inspection, a verdict might be rendered against the landlord. Held, error; that the law puts on the tenant the risk of such defects as are visible on inspection, and does not require of the owner active vigilance to see that the premises he is letting are safe.

Appeal from judgment in favor of plaintiff, entered on verdict

This action was brought to recover damages for injuries sustained by falling down cellar stairs in a house owned by defendant and leased by him to plaintiff’s father. The fall is alleged to have been caused by the stairs being out of repair.

The premises were leased by a written lease, dated February 26, 1889, for a term of one year from April 1, 1889.

The lease contained a covenant by defendant to make certain specified repairs not affecting the stairs in question. The lease did not contain any agreement by either party to make general repairs or to do anything to the stairs in question.

The plaintiff was a member of the family of the lessee and received the injury for which she brought this suit, on January 28, 1890, by falling down the cellar stairs, which she alleges in some way “ threw her down.”

K A. Brewster (J. Hervey Coolc, of counsel), for app’lt; R. Baker (II. A. Nelson, of counsel), for resp’t.

The general rule of law is in Robbins v. Jones, 15 C. B. (N. S.), 221, said to be “ A landlord who lets a house in a dangerous condition is not liable to the tenants, customers, or guests for accidents happening during the term ; for, fraud apart, there is no law against letting a tumble down house, and the tenant’s remedy is upon the contract, if any.”

The same rule was held in Jaffe v. Harteau, 56 N. Y., 398 , and we think must be regarded as settled law.

An apparent exception has been engrafted upon the rule to the effect that where a landlord retains in his control a portion of the building he owes a duty in respect to such portion to the people whom with his consent come upon the premises. Camp v. Wood, 76 N. Y., 92 .

But we are not aware of any rule, where a whole building is rented to a single tenant, which imposes upon a landlord the duty of active vigilance to make sure that it is in all respects safe.

Where the defects are apparent upon inspection and the landlord does not resort to any device or subterfuge to prevent the tenant from learning the condition of the premises, the rule of caveat emptor would seem to do justice between the parties.

A different rule seems to have been applied at circuit The jury

p. 634

were charged that if the stairs at the time of letting were weak to an extent that could be easily ascertained upon inspection, a verdict might be rendered against the landlord. This would impose upon the owner of real property the duty of active vigilance to, see that the premises he is about to rent, in this instance a dwelling, are in good condition.

We think the law puts upon the tenant the risk of such defects as are visible upon inspection.'

From these views it follows that the judgment should be reversed and a new trial ordered, costs to abide the event.

Barnard, P. J., concurs; Dykman, J., not sitting.