Oakley v. Loeming

The complaint charged the defendant with the non-payment of Croton water rates on the premises. The answer admitted the lease, but alleged that before the rent claimed became due, the building became unsafe, dangerous and untenantable without any fault of the defendant, whereupon he abandoned the premises and surrendered possession thereof. At the trial, the defendant was allowed the affirmative of the issue, At the close of the defendant’s case, the trial justice directed a verdict for the plaintiff, from which direction and the judgment entered thereon, this appeal is taken. The direction of the trial justice was proper. The case of Tallman v. Murphy, 120 N. Y. 345 ; 31 St. Rep. 483 , cited by appellant’s counsel is not applicable to the facts in this case. In that case the owner retained control over everything common to the whole building of which each tenant had the use or beneficial enjoyment and therefore the landlord was in duty bound to make all necessary repairs and remedy any defects that might appear in the building. No such duty was chargeable to the plaintiff herein. It was the duty of the defendant herein to have made the necessary repairs and the Laws of 1860 chapter 345 which he seeks to invoke does not apply to the section. The judgment must therefore be affirmed with costs.

Yak Wyck, P. J. and McCarthy, J., concur.