Citation Numbers: 54 N.Y. 450
Judges: Earl, Reynolds
Filed Date: 9/5/1873
Status: Precedential
Modified Date: 11/12/2024
The sole defence to this action is based upon the statute (Laws of 1860, chap. 345) which provides "that the lessees or occupants of any building, which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements or any other cause as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied."
The roof of the small extension, in the rear of the main building, became gradually out of repair so as to leak badly, and the sole question for us to determine is, whether the demised premises were thus "injured" within the meaning of the statute. The leaking was not caused by any sudden, unusual, or fortuitous circumstance, but seems to have been caused by gradual wear and decay. The courts below held that the case was not within the statute, and that the lessee remained liable for the rent.
To be able properly to understand this statute, it is well to see what the common law was before it was enacted, and to ascertain, if we can, the mischief it was intended to remedy. At common law the lessor was, without express covenant to that effect, under no obligation to repair, and if the demised premises became, during the term, wholly untenantable by destruction thereof by fire, flood, tempest or otherwise, the lessee still remained liable for the rent unless exempted from such liability by some express covenant in his lease. (Walton
v. Waterhouse, 3 Saund., 422; Hallett v. Wylie, 3 John., 44; Graves v. Berdan,
But it was considered a hard rule that the tenant who had from ignorance or inadvertence failed to protect himself by covenants in his lease, should be obliged to pay rent in cases where, from fire, flood or other fortuitous causes, the premises were destroyed or so injured as to be untenantable, and I am of opinion that it was to change this rule and cast the misfortune upon the owner of the demised premises that the law was enacted. The statute provides for two alternatives *Page 455 when the premises are "destroyed" or "injured." The first alternative, evidently, has reference to a sudden and total destruction by the elements, acting with unusual power, or by human agency. The latter has reference to a case of injury to the premises, short of a total destruction, occasioned in the same way. If the legislature had intended to provide that the tenant should cease to be liable for rent when the premises from any cause became so damaged or out of repair as to be untenantable, it would have been easy to have expressed the intent in apt and proper language. The terms "destroyed" and "injured" do not, to my mind, convey the idea of gradual deterioration from the ordinary action of the elements in producing decay, common to all human structures.
I am, therefore, of the opinion that the courts below did not err in the construction which they gave to this statute, and this conclusion is not without the support of learned judges. (Bloomer v. Merrill, 1 Daly, 485; Austin v. Field, 7 Abb. [N.S.], 291.)
The judgment must be affirmed, with costs.