Eagle v. Swayze

By the Court.—Daly, F. J. A tenant from year to year, renting part of a dwelling house, the residue of which is occupied by other tenants, is under no obligation to make repairs of so general, substantial, and lasting a nature, as the rebuilding of a chimney which has fallen down (Johnsons. Dixon, 1 Daly, 178; Horsefall v. Mather, Holt’s N. P. C. 7; Godfrey v. Watson, 3 Atk. 517, 518; Taylor’s Landlord ds Tenant, § 343, 5th ed). In the absence of an express agreement on the part of the tenant to do so, it is the duty of the landlord to repair an injury to the building of this description, and if he negligently suffers one of the chimneys to remain in so defective a state that it tumbles down, causing loss and injury to the tenant, he is answerable to the tenant for the consequences. There is nothing in the objection that the defendant’s husband should have been joined with her as a codefendant. Though the action sounded in tort, the cause of action was the [142] defendant’s want of care and néglect in the management of her separate property. It was, therefore, a matter having relation to her separate property, and where such is the case, a married woman may now, by statute, be sued in the same manner as if she were a feme sole (Laws of New York, 1860, p. 158, § 7). There was mo evidence in the case, showing that the plaintiff was guilty of any negligence, which co-operated in producing the injury to his .property, caused by the fall of the chimney. No question of title arose upon the pleadings; and simply proving, at the trial, that the defendant had admitted that she was the owner of the property, and that her husband had nothing to do with it, which ownership she did not upon the trial dispute, raised no question as to the title (Longhurst v. The New York & New Haven Railroad Co. N. Y. Com. Pls. G. T. 1853). No objection was taken upon the trial to the competency of the witnesses to testify in respect to the value of the property, or the extent of the damages done to it, and such an objection is not available now. The judgment should be affirmed.