Taber v. Van Pelt

PER CURIAM. [1] There is no evidence that at the time of the leasing of the house in question, a farm dwelling, it was not habitable, and no claim is made that the demise was induced by any representa [488] tion of or concealment by the lessor as to its tenantable character, nor is there any evidence of an expressed covenant by the lessor that the premises were suitable and fit for dwelling purposes. “It is uniformly held in this state that the lessee of real property must run the risk of its condition, unless he has an express agreement upon the. part of the lessor covering that subject. The tenant hires at his peril, and a rule similar to that of caveat emptor applies, and throws on the lessee the responsibility of examining as to the existence of defects in the premises and of providing against their ill effects. Franklin v. Brown, 118 N. Y. 110, 115, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744. The same case cites, apparently with approval, O’Brien v. Capwell, 59 Barb. 497, 504, to the effect that as between landlord and tenant, * * * where there is no fraud, or false representations, or deceit, and in the absence of an express warranty or covenant to repair, that there is no implied covenant that the demised premises are suitable or fit for occupation, or for the particular use which the tenant intends to make of them, or that they are in a safe condition for use.” Prahar v. Tousey, 93 App. Div. 507, 509, 87 N. Y. Supp. 845. See, also, Castagnette v. Nicchia, 76 App. Div. 371, 372, 78 N. Y. Supp. 498; Daly v. Wise, 132 N. Y. 306, 30 N. E. 837, 16 L. R. A. 236; Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Steefel v. Rothschild, 179 N. Y. 273, 277, 72 N. E. 112, 1 Ann. Gas. 676. [2] The condition complained of in this case was not shown to have been due to any act of commission or matter of omission on the part of the lessor, or that it was due to her negligence, or that the situation was under her control. It will be noticed that by the terms of the lease she retained no part, nor any control of any part, of the demised premises. As between a landlord and a tenant, an eviction, whether actual or constructive, must be due to some act of commission or omission; in other words, due to some wrong or fault on the part of the landlord, whereby the tenant is deprived of the beneficial enjoyment of the premises leased. The facts in this case are different from those in Streep v. Simpson, 80 Mise. Rep. 666, 141 N. Y. Supp. 863, and like cases, where the hirings or leasings were of rooms or apartments forming part of the tenements or apartment houses, since here, as said above, the whole of the dwelling was leased to, and was under the sole supervision and control of, the lessee. Judgment affirmed, with costs.