Moroder v. Fox

[506] The following opinion was filed November 18, 1913: ViNJE, J. It appears that plaintiff rented the first story and part of the basement of a tliree-story building, and that at the time the lease was executed the second and third stories were used as flats. Ilis lease required him to “take and use all necessary precautions to prevent damages to any of the water pipes and water works upon said premises, or to any part’ of said demised premises, by frost or otherwise, and to pay all damages done to said premises by reason of bursting of said water pipes, and to turn and let the water out of the pipes in said premises whenever it shall be necessary to do so, to prevent it from freezing or injuring said pipes and property.” Do these provisions of the lease obligate the plaintiff to so care for the water.pipes that' they shall not burst in those portions of the buildiiig not leased or used by him? The provisions are in the printed form of the lease, and we think it quite clear that they were intended to make the tenant responsible only for the pipes in the portion of the premises leased by him; that the words éaid premises refer to the premises leased, and not to the whole building in which they are situated. In the instant case there was a flat in the second story, and one in the third story occupied by other tenants of the landlord. It could not have been the intention of the parties that .the plaintiff should become responsible for the water pipes in those two flats to which he had no access and over which he could exercise no control. True, there was but one shut-off for the store occupied by the plaintiff and the two flats, which was located in the basement and t'o which both the plaintiff and defendant had access. But plaintiff could not shut off the water for the second, or vacant, flat without at the same time shutting it off for the third flat, which was occupied. The only way to prevent the pipes from freezing in the second flat was to heat it, or sufficiently wrap the pipes, as found by the civil court. [507] However, that is immaterial, sin.ce under tbe terms of the lease, as we construe it, be was chargeable with the condition of the water pipes only in the premises leased by him. From the time the tenant of the flat on the second floor vacated the same in September up to and including the time the damage was done, the defendant was in possession of it, as was found by the civil court and as the fact was. Being in possession thereof, irrespective of the relation of landlord and tenant between the parties, it became his duty to exercise ordinary care to so use the same as not to injure plaintiff in the enjoyment of his premises. Knowing that the premises were vacant and unheated and. that the water pipes running through the same to supply the flat on the third story with water were uncovered and unprotected from frost, it was negligence to allow them so to remain during the winter time. Eor such negligence he became liable to plaintiff who sustained damage as a proximate result thereof. The case of Priest v. Nichols, 116 Mass. 401, is very much in point. The facts and ruling thereon are thus stated by the court: “The plaintiffs occupied as tenants the lower floor of a building belonging to the defendants. The defendants occupied the floor above. There was a pipe leading through the plaintiffs’ premises which conveyed the waste water and material from the manufactory, sinks and water closet of the defendants to the sewer below. This pipe was alleged to be in charge of the defendants, and evidence was offered that they had so treated it, and had, from time to time, upon notice, made repairs upon it. But they negligently suffered it to be out of repair, whereby the water damaged the goods of the plaintiffs. It was a question of fact for the jury, whether the pipe was in charge of the defendants, and was out of repair through their negligence. The rule that a landlord is not bound to keep the premises of his tenant in repair, and therefore cannot be held responsible for negligence, if out of repair, has no application to the facts presented in this case.” [508] It was held that plaintiff was entitled to recover. In Buckley v. Cunningham, 103 Ala. 449, 15 South. 826, the contrary was held under somewhat similar facts. In the following cases recoveries have been had for the negligent escape of water by a tenant or owner causing damage to another tenant: Warren v. Kauffman, 2 Phila. 259; Rosenfield v. Arrol, 44 Minn. 395, 46 N. W. 168; Killion v. Power, 51 Pa. St. 429; Curran v. Weiss, 6 Misc. 138, 26 N. Y. Supp. 8; Greco v. Bernheimer, 11 Misc. 592, 40 N. Y. Supp. 611; Simon-Reigel C. Co. v. Gordon-Burnham B. Co. 20 Misc. 598, 46 N. Y. Supp. 416; Miller v. Benoit, 29 App. Div. 252, 51 N. Y. Supp. 368, affirmed in 164 N. Y. 590, 58 N. E. 1090; Pike v. Brittan, 71 Cal. 159, 11 Pac. 890; Freidenburg & Co. v. Jones, 63 Ga. 612. See, also, valuable note in 15 L. R. A. N. s. 545 et seq., where most of these and other cases are collected. Eor additional cases, where it has been held that the landlord is liable to a tenant for the negligent use of part of the premises retained by him, see Railton v. Taylor, 20 R. I. 279, 38 Atl. 980; Hysore v. Quigley, 9 Houst. (Del.) 348, 32 Atl. 960; Defiance W. Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238; Glickauf v. Maurer, 15 Ill. 289; Jackson v. Eddy, 12 Mo. 209; Stapenhorst v. American Mfg. Co. 15 Abb. Pr. n. s. 355. By the Court.- — Judgment reversed, and cause remanded with directions to affirm the judgment of the civil court.