Steefel v. Rothschild

Woodward, J.: A single question of law is presented upon this appeal, and is brought here by the exception to the refusal of the trial court to' dismiss the complaint. The defendant is the owner of certain premises at the corner of Fulton and Jay streets in the borough of Brooklyn, which, on the 21st day of June, 1898, was occupied by an [294] •eight-story building, with two cellars. On the date last above mentioned the defendant executed to the plaintiffs a written lease of the store on "the ground floor, to be occupied by them as a clothing store. Plaintiffs entered into possession, fitted up the place for the purposes •of their business, the defendant retaining possession of the cellar^ ••and other parts of the building. The plaintiffs paid the rent of this store for the month of December in advance, and on the second day •of that month the city of Hew York notified the plaintiffs that the building was in a dangerous condition and liable to collapse, and took jDOSsession of the same and commenced an action against the defendant in this action to have the same condemned, resulting in a judgment of condemnation, in pursuance of which the building has since been demolished. While these matters were in progress the building department took -steps to make the building safe for the public, destroying its usefulness for the purposes of the plaintiffs, who removed their goods, and bn the 15th day of December, 1898, addressed-a letter to-the defendant, stating that they had “ been obliged to quit and vacate the said premises, because the same are dangerous and untenantable in consequence of your failure to maintain the parts of the building in your possession and under your control in such reasonably safe state as to •support and preserve the premises rented to us against injury and -collapse. We hereby surrender possession of the said premises rented to us by you and return to you the keys therefor. By reason -of the condition of the said premises and the necessity of removal therefrom we have suffered great damage for which we will hold you responsible.” The defendant, on the nineteenth of December, accepted the surrender, but denied any' liability for damages, and this action was brought to recover the same, the theory, as expressed in the complaint, being that “ under and by virtue of the fact that the •defendant leased the premises aforesaid to the plaintiffs and retained in his possession and under his control the other portions of the building not let and rented to the plaintiffs, the said defendant became and was under an obligation to the plaintiffs to keep and maintain the parts of the building not let and rented to the plaintiffs in such secure, firm, stable and proper condition that the premises let and rented to the plaintiffs might not be endangered, rendered insecure ór untenantable or unfit for occupancy or unfit for [295] the purposes of the business for which the same had been let and rented by the defendant to the plaintiffs.” The issues were tried before a jury, resulting in a verdict for the plaintiffs for $5,000, and the question brought before this court is whether the trial court erred in refusing to dismiss the complaint upon the motion of the defendant upon the ground “ that no express promise of the defendant to repair or preserve the building had been alleged or proved; and upon the ground that the defendant was under no obligation to beep the premises in a tenantable condition during the lease.” A motion was also made to set aside the verdict, but it is not necessary to dwell upon this question, as we hare reached the conclusion that the plaintiffs cannot recover damages for the loss to their business under the circumstances disclosed by the evidence, and that the complaint should have been dismissed. At common law a tenant is a purchaser of an estate in the land or building hired (Bowe v. Hunking, 135 Mass. 380, 385) and Keates v. Cadogcm (10 C. B. 591) states the general rule that no action lies by a tenant against a landlord on account of the condition of the premises hired in the absence of an express warranty or of active deceit. This is the general rule of ca/veat emptor / in the absence of any warranty, expressed or implied, the buyer tabes the risb of quality upon himself, and in the absence of a covenant to repair or rebuild, the landlord owes no duty to his tenant; he is under no implied covenant to repair or even that the premises shall be fit for the purposes for which they are leased, and the tenant is bound to pay the stipulated rent. (Viterbo v. Friedlander, 120 U. S. 707, 712, and authorities there cited.) This rule of the common law has been so far modified by the provisions of chapter 345 of the Laws of 1860 that in the case of the destruction of a building the tenant is entitled to exercise an option, either to declare the lease at an end and to quit and surrender possession of the premises, or to continue in the possession thereof until the expiration of his term, paying the rent reserved by his lease (Smith v. Kerr, 108 N. Y. 31, 34), but we find no suggestion that the landlord may be held liable for damages resulting to the tenant by reason of the building being untenantable. Even under the civil law, which regards a lease for years as a mere transfer of the use and enjoyment of the property, and holds the landlord bound, without any express covenant, to beep it [296] in repair and otherwise fit for use and enjoyment' for the purposes for which it is leased, it is held that if the tenant is expelled by the act of the sovereign, by vis major, or by some other accident, or if' the property is destroyed by an inundation, by an earthquake or other event, the lessor, who was bound to give the property, cannot-demand the rent, and will be bound to restore so much of it as he has-received, but without any other damages, for no one ought to answer for accidents. (Domat’s Droit Civil, pt. 1, lib. 1, tit. é, § 3, art. 3.) In the case at bar the tenant was expelled from the premises by act -of the sovereign power, manifesting itself through the municipality of the city of Hew York, and it would be.strange, indeed, if' a jurisdiction recognizing the rules of the common law, should hold a landlord to a higher degree of liability than would find sanction in the civil law. We find no authority for such a liability many of' the adjudicated cases, and we are of opinion that the plaintiffs took, the premises subject to the risk of being dispossessed through the-condemnation of the building, without recourse to the defendant, for damages resulting from such removal. The suggestion that the rule is different because the plaintiffs only had a portion of the building, while the remainder was in' the possession and control of the defendant, is fully answered by the court in Doupe v. Genin (45 N. Y. 119, 123), and it does not seem to be necessary to discuss the question at greater length at this time.. The plaintiffs gave up the possession, of the building and ceased paying rent when it was destroyed, or, what was equivalent, when it had ceased to be tenantable for business purposes through the-action of the municipality. Without reference to the statute of' 1860, this, with the consent of the defendant, terminated the relation of landlord and tenant; the contract was at an end. There was no damage to the goods of the plaintiffs ; they were in a building which the defendant had rented to them, and no act of negligence is alleged by which the goods themselves suffered injury, and as the tenants elected to bring the contract to an end and to remove their goods, it is not clear how they can claim damages under a breach of the contract. The damages, if any, resulted from the necessity of removing the goods to -another store, but it was the tenants who elected, to remove them and to declare the contract at an end. By doing; this they were relieved of the common-law liability for further rents. [297] but they cannot recover damages of the defendant for an act which was done of their own volition. The tenants had a right to build on the premises and occupy such building for. the remainder of the-term, if they choose to do so under the conditions of the original lease, of if the landlord had volunteered -to rebuild, the tenants would have had the right to enter into possession of the new structure and retain it for the term (Smith v. Kerr, supra), but having elected to terminate the lease, thus relieving themselves of the burden of paying the rent, they cannot now be heard to say that they have suffered damages by reason of this action on their part. What might have been the plaintiffs’ rights in the premises, if they had remained in possession and had continued to pay rent, for damages resulting through the negligence or unskillfulness of the defendant in complying with the mandate of the court in the condemnation proceedings, it is not necessary or profitable here to consider, but it is certain that having voluntarily relinquished their rights under the contract, and in turn accepted the benefits of a. rescission of the lease, the plaintiffs have no cause of action for damages growing out of the removal of the goods to another store.. The judgment should be reversed, and a new trial granted. Hirschberg, Jenks and Sewell, JJ. concurred, Goodrich, P. J.,. read for affirmance.