Graber v. Bergman

Bijur, J.

The action was brought to recover for damages sustained to plaintiffs’ goods from a leak in the roof on premises owned by the defendant. The lease between the parties provided inter alia, “ The said lessor agrees to make * * * all repairs to the roof * * *, but it is understood that the said lessor shall not be liable to the said lessee for any damage caused by the leakage of the roof * * * unless the lessor neglects to repair same within a reasonable time after a written notice of such leakage is delivered to the said lessor.” At the trial plaintiffs offered to prove that the landlord had been given an oral notice and had promised to make the repairs; and contended that that was a waiver of the requirement of written notice.

The learned judge below was apparently of the opinion that the notice in writing was not or could not be waived. In this I think he was in error. The contract provided that the landlord should repair the roof. The giving of a written notice in case of a leak was a mere condition precedent to the right of a recovery for damages in case of a violation by the landlord of his covenant to repair, and as such it could be waived by the landlord or his duly authorized agent. See Clark v. West, 193 N. Y. 349 ; also Kiernan v. Dutchess Co. Mut. Ins. Co., 150 id. 190. The doctrine is also recognized in other cases, even though the court determined that the party who is claimed to have waived the condition did not have adequate authority thereto (see, for example, Langley v. Rouss, 185 N. Y. 201), or because the liability was predicated on a different theory or on other circumstances. Pratt, Hurst & Co. v. Tayler, 135 App. Div. 1. The intimation of a contrary view in Gutman v. Folsom, 61 Misc. Rep. 304, 306, does not go so far as respondent contends, and is, moreover, quite obiter to the decision of that case.

As the only point raised on the appeal under consideration relates to this waiver, the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Guy and Pendleton, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.