Eschbach v. Hughes — 57 N.Y. St. Rep. 550

Majority

p. 550

George F. Eschbach, Resp’t, v. Brian G. Hughes, App’lt.

(New York Common Pleas, General Term,

Filed February 5, 1894.)

Headnote

Damages—Landlord and Tenant.

A tenant cannot recover damages for ill-health occasioned by the landlord’s neglect to repair the,roof of the demised premises under his covenant in the lease.

Appeal from a judgment of the district court in the city of Hew York for the third judicial district rendered by the justice, without a jury, in favor of the plaintiff.

Action to recover damages for ill-health alleged to have been contracted because of defendant’s breach of covenant to maintain the premises demised to plaintiff in good repair.

O. A. 0. Barrett, for resp’t; Wm. H. Ciarle, to the corporation ; Wm. E. Sweetser, for app’lt. v

Plaintiff, a lawyer, sued to recover damages alleged to have accrued to him by ill-health from pneumonia contracted in consequence of the damp condition of rooms rented to him for office purposes by the defendant, the dampness having been caused by the leaky condition of the'roof of the premises. The mayor, etc., of the city of Hew York defended the action because as lessors of the defendant the corporation was liable over to 1dm upon a covenant to keep the premises in repair. There is no dispute as to the amount of the damages awarded, nor as to the defendant’s duty toward plaintiff to keep the roof of the premises in repair under a covenant in the lease to plaintiff. Ho evidence whatever was adduced for defendant, and this appeal is based upon the ground that the plaintiff did not present a case to justify any recovery, and that defendant’s motion for judgment in his favor should have been granted.

p. 551

It is unnecessary to consider the question of plaintiff’s alleged contributory negligence since the action must, as matter of law, fail in any event. Defendant’s alleged liability for the damages sought to be recovered of him rests upon the breach of a contractual duty towards plaintiff, the neglect to repair the roof as agreed. It is not therefore one for which damages for ill-health are recoverable. Such damages are too remote. They are not within the reasonable contemplation of the parties at the time of the making of the contract.

Neither are they an immediate or natural result of the breach, Sutherland on Damages, vol. 1, chap. 1, §4, § 48, etc., pp. 99, etc.; and so it was expressly held by this court in a like case, Chadwick v. Woodward, 12 Daly, 400 . The judgment therefor should be reversed, and the complaint dismissed, with costs of this appeal, and of the court below, to appellant.