City of Boston v. Gray

W. Allen, J. The plaintiff relies upon two grounds to take this cáse out of the rule that the occupier of premises, and not the landlord, is under obligation to keep them in repair so as to be safe for the public. See Lowell v. Spaulding, 4 Cush. 277 ; Stewart v. Putnam, 127 Mass. 403. It is contended that the excavation under the sidewalk was the nuisance, put there by the landlords and let by them to the tenants to be used by them. But the case finds that the excavation was properly there, and that its covering was properly made and placed and of proper materials, and that the accident happened because it had worn smooth and slippery from long use. The nuisance, then, consisted in the condition of the surface of the covering which formed part of the sidewalk; and it is not contended that it was in the same condition when the premises went from the occupation of the landlords into that of the tenants, if that would be material. In both of the cases cited above, it was held that a landlord was not under obligation to see that excavations in sidewalks, made by him and covered when let, were kept covered. In Larue v. Farren Hotel Co. 116 Mass. 67, the opening in the sidewalk was made and left uncovered by the landlord, and he was held to be liable, but whether for that reason, or because he retained the general control and supervision of the premises, and the obligation to keep them in repair, does not distinctly appear. [56] It is also contended that the occupation of the tenants, and their obligation to keep in repair, did not extend to the part of the premises, the Hyatt light, which was defective; that the landlords retained the control of that, and were therefore under obligation to keep it in repair. We think that the lease of the store and basement included the excavation under the sidewalk, and its covering; and that the tenants’ covenant to keep in repair applied to it, and is not affected in regard to it by the provision that the lessees shall not be bound to repair the roof, nor by their covenant that the lessors may enter to view the premises, and make repairs if they elect so to do. The fact that the upper part of the building was let to another tenant, who covenanted to keep it in repair (not excepting the roof), does not seem to be material. Judgment affirmed.