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Kabus v. Frost

50 N.Y. Super. Ct. 72 18 Jones & S. 72 Court N.Y. Super. Ct. Decision date 1884-02-04 English

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p. 72
ROBERT KABUS, Appellant, v. SAMUEL FROST, Respondent.
Decided February 4, 1884.

Headnote

Landlord and tenant—covenants to repair—damages for personal injury, when not within scope of.
In an action for damages from negligence of defendant, the landlord, in permitting the ceiling of a store to become and remain broken, so that it fell upon plaintiff, the tenant, to his great hurt, etc., the plaintiff alleged in the complaint that at the time of the making of the lease, defendant had orally agreed to repair and keep in repair the ceiling. In the written lease the plaintiff had agreed to make certain repairs, in which the ceiling was not included, but it nowhere appeared that defendant had agreed in writing to make any repairs.
Held, that there was no ground of recovery.
There was no legal obligation whatever upon defendant to make such repairs, and if such a covenant had been made, the damages suSered would not have fallen within its scope.
Before Sedgwick, Oh. J., and O’ Gorman, JJ.
Appeal by plaintiff from judgment entered on the direction of a judge at trial term dismissing the complaint, and from order denying plaintiff’s motion for a new trial made upon the judge’s minutes.
The action was for damages to the plaintiff from the
p. 73
negligence of the defendant in permitting the ceiling of the store rented by defendant to become and to remain broken and loose, so that it finally fell upon plaintiff to his great hurt.
The complaint alleged that at the time of the lease, the defendant verbally agreed to repair and keep in repair the ceiling. The written lease provided that the plaintiff should do certain specified repairs, but made no reference to ceilings. The defendant made no written agreement to repair in any way.
Henry H. Morange, for appellant.
Johnson & Cantine, for respondent.

The plaintiff offered to prove that before or at the time of the written lease, the defendant, the landlord, agreed verbally to do repairs of a certain kind, among which the plaintiff claims was repairs of the ceilings. Cleves v. Willoughby ( 7 Hill, 83 ), is an approved authority against the admissibility of this. The relation of landlord and tenant being created by the written contract, the law attaches definite obligations to the relation which cannot be changed by a previous oral agreement. There are many other cases to support this, which it is unnecessary to cite.

There is no implied warranty or obligation on the part of the landlord that the premises were in a safe condition for use, or that they would not become unsafe (O’Brien v. Capwell, 59 Barb. 497 ; approved in Jaffe v. Harteau, 56 N. Y. 398 ). To this also other cases might be cited. There was no general obligation to repair (Doupe v. Genin, 1 Sweeney, 25 ; affirmed in 45 N. Y. 119 , and the cases cited). If the specific enumeration in the lease of certain repairs to be made by the tenant, implied that the tenant was not bound to make other repairs, such as to the ceiling, the implication extended no further than to the tenant’s obligation, and had no relation to those of the landlord. The case would be that the landlord was not bound to repair, and the ten

p. 74
ant was not bound to repair, and that such a condition of things might remain to the end of the term.

If there had been such a contract, its breach would not justify the tenant in recovering damages that were nob within the contemplation of the parties at the time—such as personal injuries from the falling of the ceiling that had not been repaired.

In fact, there is no ground for the claim in the present case that would not exist in favor of a grantee in fee against his grantor. The difference is the quantity of the interest granted.

On the general rules that pertain to a right to damages from negligence of another, it is apparent that the plaintiff knew whatever there was of threatened danger in the state of the ceiling, and voluntarily incurred the risks.

The case of Arnold v. Clark (45 Super. Ct. 252), supports the judgment.

Judgment affirmed, with costs, and order appealed from affirmed, with $10 costs and disbursements to be taxed.

O’Gorman, J., concurred.

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