Sherwood v. Seaman — 15 N.Y. Super. Ct. 127

Majority

p. 127

Geo. E. Sherwood, Plaintiff and Appellant, v. Jas. V. Seaman, Respondent.

Headnote

A landlord, in the absence of an express covenant, is under no obligation to repair, or to do any act to protect his tenant from the consequences of the lawful acts of the owner of adjoining premises, in excavating them to such depth as would endanger the stability of the demised premises.

Chap. 6 of the Layfs of 1855, has not altered the duties and liabilities of a landlord to his tenant

Mere knowledge of the landlord, that his tenant is willing that he should give the license, provided for by that statute, does not create a duty to give it, nor subject the landlord to an action, because he did not give it.

To subject the person excavating to the expense of protecting the adjoining building. he must “be afforded the necessary license to enter on the adjoining land." This must be explicit, and sufficient to protect him in doing the acts to be done, to perform the duty the statute creates; and it would seem, that it should be given by all persons who would be injuriously affected by such acts.

(Before Bosworth and Hoffman, J. J.)

Heard, November 9th; and

decided, November 28th, 1857.

This action comes before the General Term, on an appeal by the plaintiff from a judgment rendered by Mr. Justice Duer, on the 31st of January, 1857, in favor of the defendant, on a demurrer interposed by him to the plaintiff’s complaint. The complaint is, in substance, as follows, viz:—

I. The complaint states that the defendant had leased to plaintiff the basement room and a back building of lot No. 252 Broadway, for a saloon and restaurant, for three years, from the 1st of May, 1856, at the annual rent of $1100, payable monthly (containing a copy of the contract of letting).

II. That the plaintiff, at the "same time, executed and delivered to the defendant a counter agreement, binding himself to pay the rent.

III. That the plaintiff, on the 1st day of May, 1856, entered upon said term, under the lease, and paid the rent to 1st June, 1856.

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TV. That Grosvenor, the owner of lot Ho. 251, adjoining the demised premises, duly notified the defendant that he intended to excavate the soil of his lot ten feet below the curb, to lay the foundation of a building he intended to erect thereon.

V. That defendant neglected and refused to grant-the license, under the statute, to Grosvenor, to enter lot Ho. 252, in order to compel him, at his own expense, to preserve the southerly walls of the buildings on Ho. 252, and support the same by a proper foundation.

VI. That the plaintiff had no possession or control of the rest and residue of the buildings, and no right to occupy the same.

VII. That the defendant was the owner of the title to the same, and had the possession and control thereof.

VIII. ' That defendant well knew that plaintiff was willing that defendant should grant such license to Grosvenor to enter lot Ho. 252.

IX. That, in consequence of such excavations on lot 251, the buildings on lot 252 fell, and crushed and destroyed all the plaintiff’s furniture, fixtures, etc., to the value of at least $4000, and rendered the demised premises unfit to occupy as a saloon or restaurant, and wholly worthless.

. X. That defendant was bound to support and sustain said buildings, or grant a license to Grosvenor to do it.

XI. That plaintiff’s property on the demised premises, and his business, were wholly destroyed and broken up, and the lease rendered valueless, and he evicted, etc., from the premises, to plaintiff’s great damage, for which he demands judgment for $10,000.

The lease from the defendant to the plaintiff was set out, in the complaint, in full, and reads thus, viz.:—

“ I agree to let, to Geo. E. Sherwood, the premises now occupied by him, at Ho. 252 Broadway, for a saloon and restaurant, for three years from May 1st, 1856, at yearly rent of eleven hundred dollars per year, payable monthly; he, the said Sherwood, agreeing to vacate the said premises one year previous to the expiration of said term, if Charles S. Francis vacates the upper part of said premises, said Sherwood to do all necessary repairs at his own expense. “ J. V. Seaman.”

“ Hew York, January 23d, 1856.

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The complaint also contains these allegations, viz.:—

“And the plaintiff farther shows, that the said Grosvenor carried on and conducted said excavations on his said lot, so as to relieve and keep himself harmless of any trespass on the plaintiff’s rights or oth'er liability for the injury, loss and damage sustained by him in consequence of the fall of said buildings occupied by him as aforesaid, on said lot No. 252 Broadway.”

The defendant demurred to the complaint, specifying, among other grounds of objection, that it does not state facts sufficient to constitute a cause of action.

Judgment having been given for the defendant, the plaintiff appeals from it to the General Term.

H. Z. Hayner, for plaintiff and appellant, insisted, among other grounds, in support of the appeal, that it is the policy of the law that the landlord shall not be encouraged to do, or suffer any thing to be done, which he can legally prevent, by which his tenant shall be injured or his possession disturbed, and cited Dyett v> Pendleton, (8 Cowen R. 727;) Edwards v. Hethrington, (7 Dowl. & Ryl. R. 117 ;) Ogilvie v. Hull, (5 Hill R. 52 ;) Cohm v. Dupont, (1 Sandford R. 260 ;) Christopher v. Austin, (1 Kernan, 216;) Qilhooley v. Washington (4 Comst. 217).

The defendant, under the Act, had the power to prevent his premises being thus used by any one. (Laws N. Y, 1855, pp. 11, 12, § 1.)

Having the power in law to prevent Grosvenor from inflicting these injuries upon the plaintiff, through the use of defendant’s premises, he is responsible for such injuries. Qilhooley v. Washington (4 Comst. 217).

In refusing to grant the license in question, and thus suffering' Grosvenor to excavate, without preserving the walls of the buildings on lot No. 252, the defendant wilfully caused the destruction of the premises he demised to the plaintiff, and which, in legal effect, is a tortious eviction of the tenant by his landlord.

Had the Act respecting excavations never been passed, it would have been the legal duty of the defendant to use 'the necessary precautions to sustain and preserve from injury the walls of the buildings liable to be injured or endangered by excavations on the adjoining lot, inasmuch as a small portion thereof, only, were

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demised to the plaintiff and the defendant being the owner of the whole, and the landlord of the part demised.

B. H. Mount, Jr., for respondent.

There is no express covenant or promise in the lease, from the defendant to the plaintiff, that the former will make repairs, or do any act to preserve the demised premises in a condition fit for habitation, or for the prosecution of the business for which they were demised. On the contrary, the written contract states, that the plaintiff was “ to do all necessary repairs at his own expense.”

Howard v. Doolittle, ( 3 Duer, 464 ,) is in point, and determines, that the landlord, in the absence of an express covenant, is under no obligation to repair, or to do any act to protect his tenant from the consequences of the lawful acts of the owner of adjoining lots, in excavating them to such depth as would endanger the stability of the demised premises. That decision must control our own on that point. In the opinion of the Court, in Howard v. Doolittle, the leading authorities are examined, and establish, as we think, the conclusions at which the Court arrived. See, also, Keates v. Cadogan (2 Eng. L. & Eq. R. 318).

Unless Chap. 6 of the Laws of 1855 (p. 11) has altered the duties and liabilities of a landlord to his tenant, there is no cause of action stated in the complaint. That Act makes it practicable to subject a person, excavating a lot in the City of New York to the depth of more than ten feet below the curb, to the expense of preserving from injury a contiguous wall on an adjoining lot, during the excavations, and of supporting the same by a proper foundation, so that it shall remain as stable 'as before such excavations were commenced.

To subject the person excavating to such expense, he must “be afforded the necessary license to enter on the adjoining land.”

Such license must be tendered, and must be express, and authorize such acts to be done as may be necessary to enable the person, to whom'it may be given, to perform the duty which the statute, in such a contingency, creates.

When given, it must be given by those who may be injuriously affected, for the time being, by the acts necessary to preserve from

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injury the wall on the adjoining lot, and to support it by a proper foundation.

A license from the landlord will not protect him from an action by the tenant for interfering with the possession of the latter. A license from both landlord and tenant may be necessary to protect the person proposing to excavate, and, if so, would be necessary to subject him to the liability declared by this statute.

But we think it a sufficient answer, to the arguments of the plaintiff, based on this statute, to say that prior to the statute the landlord was under no obligation, as between himself and his tenant, to do any thing to preserve the demised premises from the consequences of such acts.

That statute does not create, and was not designed to create any such obligation. Its whole object was, to enable those who might desire to protect an adjoining wall from injury, and who, but for the Act, must have preserved it at their own expense, to cast upon a person excavating the expense and responsibility of preserving it from injury until the excavations are completed, and of continuing its stability, as firm as he found it when the excavations were commenced.

It does not make it compulsory upon any one, who has a building on the lot adjoining the lot to be excavated, to protect his building, or subject him to the expense and necessity of preserving it from injury.

This is not a case, therefore, in which the landlord has done any affirmative act, or authorized an act to be done by any other person, which makes the demised premises less beneficial, or wholly useless to the tenant.

All the acts done by Grosvenor, instead of being done by virtue of any permission of the landlord, express or implied, were performed in his own right, as owner of the lot excavated.

The consent of the defendant to these acts was not essential to justify them, and it was not asked. The defendant could not have prevented him from doing them, and an express notice forbidding him to do them, would not have subjected Mr. Grosvenor to any liability to any one.

The complaint avers, that “ the said Grosvenor carried on and conducted said excavations on his said lot, so as to relieve and keep himself harmless of any trespass on the plaintiff’s

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rights or other liability for the injury, loss and damage sustained by him in consequence of the fall of said buildings, occupied by him as aforesaid, on said lot, No. 252 Broadway.”

To sustain this action, it is necessary to hold, that although the landlord is under no obligation to be at any expense, or to do any act to sustain the demised premises, and preserve them from injury, yet he is bound, by force of the relation of landlord and tenant, to give such a license, in a case like the present, as will make it the duty of a person about to excavate an adjoining lot, to preserve from injury the wall of the demised premises, while the excavations are progressing, and leave it, when they are completed, as firmly supported as it was when they were commenced.

This liability, if it exists, grows out of the statute and the fact, that the landlord knew the tenant was willing that such license should bé afforded.

This statute, in our view of it, does not alter the duty of landlords, to their tenants, so as to require the former to interfere in any manner with the lawful or unlawful acts of third persons, for the protection of their tenants against consequences, which they have not undertaken to mitigate or prevent.

The landlord is not liable to indemnify the tenant against results, which he has not promised, either expressly or by implication, should not occur.

The judgment must be affirmed.