Vann v. . Rouse

Danforth, J. On the 22d of April, 1873, the plaintiff leased to the Second Hniversalist Society, of Syracuse, three rooms in the second story of Ho. 61 South Salina street, Syracuse, to be occupied by them “ as a place for religious worship, and purposes connected therewith, for the term of three years, commencing on the 1st day of May, 1873, and ending on the 30tli day of April, 1876, at the annual rent of $400 the first year, and $500 the next two years; in equal monthly payments—subject, however, to the provision that in case the *405 tenant shall abandon the premises at any time, the rent then due or to become due, on this lease, “ shall be in reality due and collectible.” This agreement was upon conditions, all of which the tenant undertook to perform, and among others, to pay the rent at the times above specified. The defendants guaranteed the payment of the rent as it became due. It was paid by the tenants up to November 1, 1874, but soon after they abandoned the premises, because, as they alleged by reason of a flow of water from other parts of the building, owned by the lessor and under his control, they became untenantable and not fit for the purposes for which they were hired. There was evidence to warrant tins assertion and to show also that the fixtures and furniture of the society were in jured by the water and the plaster which it brought down, and that the tenants suffered damage thereby in other respects. This action'was brought upon the guaranty to recover rent accruing by the terms of the lease after the tenants vacated the premises. The defendants, to defeat the action, relied upon the facts above stated, and set up by way of counter-claim those damages which the tenants had sustained. It was assumed by both parties that there was evidence from which the jury might find the defendants to be assignees of the tenant in respect to them, but the contention of the plaintiff was that the assignment was not made until after the commencement of the action, and so not available to the defendants. It does not appear that upon the trial any question was raised on the pleadings, and the written argument of the appellants leads to the inquiry, whether in view of the evidence the court erred in giving instructions to the jury: First: “ That if without fault or negligence on the part of the tenants, the rooms were untenantable and unfit for occupancy, they were justified in leaving and would not be bound thereafter to pay rent.” At common law the rule was otherwise. The lessee was held by the obligation of his express covenant to pay rent, although the premises had been actually destroyed. But the rights of *406 the parties were regulated by statute (Session Laws of 1860, chap. 345), and the charge of the judge followed its language. The immunity afforded by it is absolute, “ unless otherwise expressly provided by written agreement or covenant ” (statute, supra). And the learned counsel for the appellants argues that the stipulation in the lease, which makes the whole rent at once due and collectible in case the tenant abandons the premises, is such an agreement. We cannot, however, find in the words referred to any evidence of an intention on the part of the lessees to waive the advantage which the written law gives them. The statute declares that under certain conditions a tenant shall not be bound to pay rent after injury to the premises, and there are no words in the lease referring to such event or providing that, the tenants will pay, notwithstanding its occurrence. Here is no new or additional promise to pay rent, but merely a stipulation waiving the prescribed period of credit which the tenant would otherwise have. When the legislature casts a charge or duty upon the owner of premises, there must be something more than this to shift the burden from him to the tenant. The law put upon the landlord the risk of having premises unfit for occupation, and here before the condition of the lease attached, upon which payment was expedited, the statute intervened and released the tenant from his obligation to pay, after the day of the injury, so that at the time of abandonment liability to pay rent had ceased. It could not accrue “ after the premises became untenantable and unfit for occupancy,” and there was nothing therefore to which a stipulation could apply. The statute is not within the covenant, and there are no words from which it can be inferred that the parties had the law in their minds. There is certainly no agreement that the tenant shall continue liable, notwithstanding its provisions, and they cannot be made so without an express covenant. The plaintiffs’ contention would, if successful, operate, so far as the tenants are concerned, as a repeal of the statute and subject them to the rigor of the common law. This claim is not sustainable, “/Second: We are referred to no evidence which would *407 warrant a finding that the assignment of the claim for damages was made after the commencement of the action. The written transfer was lost, but its execution was not controverted, and the circumstances attending it, as well as the testimony of witnesses, permit no other inference than that its delivery was before suit actually brought. It was sufficient to defeat a recovery for rent otherwise due, and if the facts found established injury, for which the plaintiff was responsible, furnished cause for an affirmative judgment against the landlord. Indeed the case was tried upon this theory, and at the plaintiff’s request the court charged that the defendant's could not recoup for damages unless they resulted from the positive acts or negligence of the plaintiff or his agent. There was evidence of these things, and the verdict established that the tenants were justified in abandoning the premises, and that they did sustain damages by reason of the plaintiff’s omission to keep in order water pipes and closets in rooms under his control, after notice that they were defective and causing injury to the plaintiff. He might have been held liable for a breach of covenant for quiet enjoyment which-the law implies in such a lease (Boreel v. Lawton, 90 N. Y. 293; 43 Am. Rep. 170), or .for failing to keep his promise after notice to remove the cause of damage. The plaintiff cannot complain that his liability was not put specifically upon. these grounds. The charge in this respect was not merely acquiesced in, but in various propositions submitted by the plaintiff, it was assumed that if the evidence justified a finding that injury was caused to the tenants by his acts or negligence, and that the claim for damages so occurring was assigned before suit, the defendants might have the benefit of it. The objection was not made that liability so incurred was'not the proper subject of a counterclaim. It is, therefore, too late to raise it now. (Home Ins. Co. v. West Trans. Co., 51 N. Y. 93; Gleadell v. Thomson, 56 id. 194.) We find no other point in the appellants’ argument which requires discussion or affords ground for this appeal. *408 The judgment of the court below should, therefore, be affirméd. All concur, except Ruger, Ch. J., who took no part. Judgment affirmed.