Drescher Rothberg Co. v. Landeker

140 N.Y.S. 1025

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 10, 1913
• Status: Published

Opinion

LEHMAN, J.

The plaintiff has recovered a verdict against his landlord for damages caused by a leaky roof. The trial justice there- 8 after set aside the verdict, and dismissed the complaint on the merits, on the ground that by the terms of the lease the landlord was exempted from all liability for damages from leaks. The lease contains the following clause:

“It is expressly -agreed and understood by and between the parties to this agreement that the landlord shall not be liable for any "damage or injury by water which may be sustained by the said tenants or other person, or for any other damages or injury resulting from the carelessness, negligence, or improper conduct on the part of any other tenants or agents or employés, or by reason of the breakage, leakage, or obstruction of the Croton water or soil pipes, or other leakage in or about the said building.”

[ 1 ] Similar clauses in other leases have been frequently before the courts, and the decisions have established rules of interpretation for clauses of this nature. They "are to tie construed strictly; and to-get at the real intent of the parties, covenants that are in large and general terms are frequently narrowed and confined.” Worthington v. Parker, 11 Daly, 545. They “have invariably been held to afford the-landlord no protection from his own negligence or wrongful acts.” Levin, v. Habicht, 45 Misc. Rep. 382, 90 N. Y; Supp. 349. It seems to me thauthis clause, interpreted '“to get at the real intent of the parties,” means simply that the landlord is not to be liable for damages caused by wear and tear, or inherent defects, or the action of the elements, although by the exercise of active vigilance "he might hav.e prevented such damages; but it does not exempt him from his liability to repair actual defects, when called to his attention,-or from acts of affirmative negligence.'j¡ I find no case in which such a clause has received an interpretation wide enough to exempt the landlord from liability for such acts, nor would such an interpretation be consonant with common sense. The tenant cannot repair the parts of the building in the landlord’s control, and it was obviously the intent ofihe parties that the ■ landlord should continue to make these repairs/ If he is negligent in making them when called to his attention, the lease should not be interpreted as exempting him from liability. On the other hand, the clause is certainly intended to provide some protection to the landlord, and the protection intended'was (to my mind) an exemption from liability for failure to protect* his tenants firorn damages which he might-have, but did not, foresee; in other words, he is exempted from damages caused by his failure to maintain an active vigilance in the examination of the premises.

[2] Applying this rule tq, the facts in this case the landlord is liable for his failure to repaii^the roof) if he had actual knowledge that thé roof was leaking during a period when hf - could have repaired it ; ¡3Ut he is not liable for his failure to discover the leaky condition during a period when a landlord could not reasonably be expected to discover such a conditionV In other words,: he may be liable on the theory of actual notice, but not on the theory of constructive notice.X The Jrtestimony presents a conflict on the question of actual notice, and thé trial justice charged the jury that they could find a verdict for plaintiff on either theory. This instruction was incorrect, and'justified the getting aside of the verdict; but the judgment of dismissal was er-

The judgment of dismissal should therefore be reversed, and a new triaj ordered, with costs to appellant to abide the event. All concur.