Bloomer v. Merrill

1 Daly 485, 29 How. Pr. 259

Opinion

By the Court.

Daly, F. J.

There was no provision in the agreement, which was in writing, that the landlord should make any repairs, and when that is the case, the tenant takes the premises for better or for worse, and must pay the rent for the term demised, the landlord being under no obligation to repair them (Mumford v. Brown, 6 Cow. R., 475). The statute of 1860 (Laws of 1860, p. 592), must he held to apply only where the building "is destroyed or so injured by the elements or other cause, as to become untenantable and unfit for occupancy,” after the tenant has been in occupation. It never could have been the intention of the statute that a tenant might hire* a dilapidated house for a certain time, agreeing to pay a specified rent for it, and that then without any material change in its condition he should have the right to quit and surrender it whenever he pleased. The statute was evidently intended to relieve tenants in cases analogous to that of Weigall v. Waters, 6 T. R., 488, where during the term the building was damaged so severely by a tempest as to become untenantable, and yet the .tenant was held bound for the rent. The offer of the defendant in this case was to. show what was the condition of the premises in November and December. The defendant hired them on the 6th of ¡¡November, and, in my view of the statute, the evidence was immaterial. unless the defendant was prepared to prove that from some cause occurring after the 6th of November, they had become untenantable and unfit for occupancy, and his offer did cot go to that extent.

The Justice having failed to render his decision within the time limited by law, lost jurisdiction of the cause, and the plain tiff’s only remedy was to sue again (Wiseman v. The Panama Railroad Co., 1 Hilt., 301; Watson v. Davis, 19 Wend., 371; Berrian v. Olmstead, 4 E. D. Smith, 279). The proceedings in the District Court were no bar.

The defendant admitted that the plaintiff said that he would let the premises on his account, and that he would hold him responsible for the rent, after the defendant told him he would leave at the end of December. The letting of the premises therefore, to Price, in January, was no evidence of surrender. The judgment, in my opinion, should he affirmed.

Judgment affirmed.