Casey v. Mann

5 Abb. Pr. 91, 14 How. Pr. 163

Opinion

Duer, J.

I am obliged, with some reluctance, to hold that the demurrer is well taken. The averment that the defendant was bound to repair is plainly insufficient. It is the averment of a conclusion of law, and no facts are stated from which the court can say that the obligation to repair resulted. The complaint, as I construe it, admits that the premises were occupied, not by the defendant, but by third persons, and consequently it was upon them as tenants, and not upon the defendant as owner and landlord, that the duty of keeping them in good condition and repair presumptively rested; and it is not alleged there was any special agreement by which the relative duties of the parties were altered. Upon this point, the decision" at general term of this court, in Howard a. Doolittle (3 Duer, 164), is a conclusive authority. The averment of the defendant’s neglect and refusal, as the duty is not shown to have been imposed upon' him, is immaterial.

Judgment for defendant, unless plaintiff, within twenty days, serve an amended complaint, and pay costs of demurrer.