Ahern v. Steele

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 203,22 N.E. 193
• Parties: AHERN v. STEELE et al.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 203

22 N.E. 193

AHERN

v.STEELE et al.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, first department.

This action was brought to recover damages, caused by the death of plaintiff's son, an infant about six years old, who, on the 8th day of October, 1882, without any fault of his, fell through a defective pier in the city of New York, and was drowned. The material facts are as follows: John Garnder died in 1817, being the owner of the pier and a large amount of other property, and leaving a last will and testament, in which he devised the pier and the other property to trustees for the benefit of his children during their lives, and after their death to their issue. Under the will this pier and other property was set apart for his daughter, Mrs. De Dion, and during her life was under the control and management of a trustee, as provided in the will. She died on the 22d day of May, 1881, leaving as her only issue two daughters, Rosalie M. Steele, Henrietta Hutton, and one son, Thomas McCarty. The son died April, 14, 1882, and the two daughters and the executors of the son were made defendants in this action. At the time of the accident the son, Thomas McCarty, was insane, and the two daughters then resided, and have ever since the death of their mother resided, in Europe. On the 1st day of May, 1880, the trustees rented the pier for the term of five years to Frank Phelon, for an annual rental of $750 for the first three years, and $850 for the last two years, payable monthly, in advance. In the lease it was stipulated that the part of the first part should not be responsible for any latent or other defect in the premises, nor for any damage to property by reason of any fault or defect in the premises, nor for any loss or damage caused by any act, fault, neglect, or omission of any tenant or occupant of the premises; and that the party of the first part should be permitted to enter upon the premises for the purpose of making repairs, if he should see fit to repair them, but that he should not be obliged to repair them. Phelon was, at the time of the accident, in the occupation of the premises under the lease, and he was made a party defendant, but did not defend the action. Some time prior to July 29, 1881, Mrs. Steele commenced an action against her brother and sister for a partition of the real estate, including the pier, held by them in common, and in that action, on the day last named, upon her petition, an order was made appointing Charles S. Brown receiver of the rents, issues, and profits of the premises sought to be partitioned. On the 5th day of November, 1881, upon the petition of Mrs. Steele and her sister, Mrs. Hutton, an order was made by the supreme court in the partition action that the receiver reserve out of the receipts by him, as such receiver, and set apart quarterly, a sum that would amount to a yearly sum of $17,500, to be applied by him to the payment of the taxes, insurance, necessary repairs, and other expenses, and that he should pay the remainder of such receipts quarterly to Mrs. Steele, Mrs. Hutton, and to the committee of their lunatic brother. Upon the trial it was shown that the pier was defective and out of repair at the time of the execution of the lease, on the 1st day of May, 1880, and that it remained defective and out of repair to the time of the accident. Upon the trial the counsel for the defendants asked the court to rule that they were not liable for the accident, because the pier came to them on the death of their mother, subject to a valid, outstanding lease, because it was the duty of the tenant to repair the pier, and it was not their duty to repair it without notice of its defective condition, and because the receiver had been appointed with directions to make the repairs necessary to the pier; and the court refused so to rule, and ruled as matter of law that the defendants were responsible for the accident if the pier was out of repair at the time of the execution of the lease, and remained so to the time of the accident. The jury rendered a verdict for $4,500, and, the judgment upon that verdict having been affirmed, (1 N. Y. Supp. 259,) the defendants appealed to this court.

RUGER, C. J., and DANFORTH and GRAY, JJ., dissenting.

John B. Whiting, for appellant.

Edward D. McCarthy, for respondents.

EARL, J., ( after stating the facts as above.)

The will of John Gardner came under consideration in Greasol v. Keteltas, 17 N. Y. 491, and it was there held that the trustee under that will took an estate in fee, determinable when the purpose of the trust should cease, and that such a trustee had power at law to lease for a term which might extend beyond the period of his trust-estate. The lease executed by the trustee to Phelon for a term of five years from May 1, 1880, was therefore valid for the whole term, and had nearly four years to run at the time of Mrs. De Dion's death, and more than two years at the time of the accident. Hence any reasoning based upon the postulate that the defendants could have terminated the lease before the end of the term will lead to inevitable error. There was no proof, even if that were in any way important, that the pier was out of repair in 1817, when Gardner died. It became out of repair and defective at some time during the existence of the trust-estate, and in that condition it was demised by the trustee. By demising the pier while it was in such a condition as to be a nuisance, the trustee was guilty of a misfeasance, and during the existence of his estate, notwithstanding the lease, he would have been responsible for any damage caused by the nuisance. Even if he had been the trustee of Mrs. De Dion's children, and they had been the beneficiaries under the trust, they would not have been responsible for any nuisance created by permitted by him; and so it was held in People v. Townsend, 3 Hill, 479. But he was not trustee for them. They derived no title or benefit from him, and had no connection whatever with him. They took their title under the will of John Gardner, and were in no way responsible for what the trustee did or omitted to do upon the trust-estate.

We have, then, this question for our determination: Are the children of Mrs. De Dion, who became full owners of this pier at the death of their mother, subject to a valid, outstanding lease, responsible for a nuisance created thereon during the existence of the precedent estate, without any notice thereof? I have carefully examined the English and American authorities, and confidently assert that there is not an authority to be found in the books imposing such responsibility. It is not the general rule that an owner of land is, as such, responsible for any nuisance thereon. It is the occupier, and he alone, to whom such responsibility generally and prima facie attaches. Pretty v. Bickmore, L. R. 8 C. P. 401; Kirby v. Association, 14 Gray, 249;City of Lowell v. Spaulding, 4 Cush. 277;Inhabitants v. Holbrook, 11 Cush. 299. The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance, and then demises the land with the nuisance thereon, although he is out of occupation; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it; if he has demised premises, and covenanted to keep them in repair, and omits to repair, and thus they become a nuisance; if he demises premises to be used as a nuisance, or for a business, or in a way, so that they will necessarily become a nuisance. In all such cases I believe there is now no dispute that the owner would be liable. But an owner who has demised premises for a term during which they become ruinous, and thus a nuisance, is not responsible for the nuisance unless he has covenanted to repair. It has even been held in some cases that an owner may demise premises so defective and out of repair as to be a nuisance, and, if he binds his tenant to make the repairs, he is not responsible for the nuisance during the term. Pretty v. Bickmore, supra; Gwinnell v. Eamer, L. R. 10 C. P. 658; Leonard v. Storer, 115 Mass. 86. But these cases are not in entire harmony with the decisions in our own state, and probably would not now be generally received as authority in this country or in England.

A grantee or devisee of premises upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he has had notice thereof, and in some cases until he has been requested to abate the same. The authorities to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question. One of the earliest, if not the earliest, case in which this rule was announced, is Penruddock's Case, 5 Coke, 100, where it was resolved that an action lies against one who erects a nuisance without any request made to abate it, but not against the feoffee, unless he does not remove the nuisance after request; and in Pierson v. Glean, 14 N. J. Law, 37, Chief Justice HORNBLOWER said: ‘The law as settled in Penruddock's Case has never, I believe, been seriously questioned since.’ In Plumer v. Harper, 3 N. H. 88, RICHARDSON, C. J., said: ‘When he who erects the nuisance conveys the land, he does not transfer the liability to his grantee. For it is agreed, in all the books, that the grantee is not liable, until, upon request, he refuses to remove the nuisance.’ In Woodman v. Tufts, 9 N. H. 88, it was held that where a dam was erected and land flowed by the grantor of an individual, the grantee will not be liable for damages in continuing the dam and flowing the land as before, except on notice of damage and request to remove the nuisance or withdraw the water. In Eastman v. Manufacturing Co., 44 N. H. 144, it was held that no notice or request to abate the nuisance is necessary before bringing suit against the original wrong-doer in such cases for the damages done;...