Murray v. Waller ( 1870 )

By the court, Loew, J.

The act of 1860 (Laws of 1860, chap, 345), authorizes the lessee or occupant of any building which shall, without any fault or neglect on his part, be destroyed, or so injured from any cause as to be untenantable, or unfit for occupation, to remove therefrom, and relieves him from the payment of rent after the happening of that contingency, unless he shall have otherwise expressly stipulated in writing.

If, therefore, during the defendant’s occupancy of the premises in question, they had become unfit for occupation, by reason of the blasting of rock on the adjoining lot, he might, doubtless, have availed himself of the privileges and benefits conferred on tenants by that statute.

It is true, the house was considerably damaged by the blasting, but there is no evidence on the case going to show, that the premises, were in anywise materially injured during the brief space of time that defendant occupied them.

The only expert examined on the trial was, an inspector of buildings, in the department for the survey and inspection of buildings, and he testified to the damage that had been done, and which, in his opinion, rendered the building unsafe, and caused him so to report it.

But on cross-examination he said, that he did not exactly recollect when that was, and that it might have been a day or two before September, and it may have been as late as October.

Now, as the defendant moved into the premises on the 14th day of September, and left within twenty-four hours after entering the same, we think, this testimony will not bring him within the purview of the statute.

If the house was unfit for occupation before the defendant moved in, then it seems clear, that it is not a case within the act, and if it became so after he left, then we say it is equally without the statute, because non constat, but what the blasting might have been discontinued, or conducted in a more careful manner, if defendant had remained in the house in accordance with the terms of his agreement.

The plaintiff distinctly testified, that an injunction had been obtained to stop the blasting, but as there was no one in the house, she knew of no reason why it should not continue.

For do we think that, the defendant can relieve himself from liability to pay this rent, on the ground, that he took the house on the condition that the blasting should cease before the time when he was to take possession.

It is true, he so testified, but the plaintiff’s positive testmony, that the defendant never made that a condition of his taking the house, contradicted this; although she admitted that she told him that there would be no more blasting after he took possession.

The court below, having upon this conflict of evidence found, that the cessation of the blasting was not a condition precedent to the existence of the relation of landlord and '•tenant, that finding is conclusive, and will not be disturbed by us. It follows, that the promise of the plaintiff that there-would be no more blasting after defendant took possession, only amounted to a simple contract or covenant, for a breach of which she would have been liable to him in damages.

With regard to the carpeting, it may be said that, although the agreement respecting the sale thereof appears to have been made with defendant’s wife still the plaintiff testified, that she believed that the defendant himself was present at the time. Besides, the defendant, in his answer, admits that he agreed to purchase them if he took the house, and it came out in his own testimony, that when he moved his furniture away, he took these carpets with him. True, he says, he did not intend to take them, but it nowhere appears that they were ever returned, and we, therefore, think, the defendant should be held liable for the price of them.The judgment should be affirmed.

Daly, Ch. J., and Larremore, J., concurred.