Borden v. Hirsh

• Decision Date: 22 May 1924
• Citation: 249 Mass. 205,143 N.E. 912
• Parties: BORDEN v. HIRSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 205

143 N.E. 912

BORDEN

v.HIRSH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1924.

Appeal from Superior Court, Suffolk County; George A. Sanderson, Judge.

Suit in equity by Annie F. Borden against William Hirsh, trustee of Hemenway Trust under declaration of trust. Decree for plaintiff, and defendant appeals. Reversed and remanded.

C. W. Rowley, of Boston, for appellant.

E. A. McLaughlin, Jr., of Boston, for appellee.

PIERCE, J.

This is a suit in equity by the plaintiff, who is the lessee of two apartments, in Boston, in an indenture of lease beginning May 2, 1920, for a term of five years, with the right of renewal for ten additional years, to compel the owner (her lessor) to install in them within such time as the court may fix a system of automatic sprinklers and fire protection devices approved as to situation, arrangement and efficiency by the building commissioner of the city of Boston, in compliance with an order of said building commissioner made under St. 1907, c. 550, § 45, as amended by St. 1914, c. 782, § 10, Sp. Acts 1915, c. 352, § 4, St. 1920, c. 440, and St. 1921, c. 476.

The lease contains the following covenant as to repairs:

‘* * * The lessee further agrees to make all interior repairs except those hereinafter set forth as to be made by the lessor and to keep the premises in the same condition as they now are (reasonable wear and tear thereof excepted) acknowledging that the same are accepted in good condition. The lessor shall keep the property in the condition that it now is and shall make all necessary exterior repairs and all necessary repairs in the hallways, staircases, elevators, and elevator wells and to supply cables for elevators, and to the boilers and to all pipes, wires and fixtures outside any of said apartments and shall keep the same safe for the use of the lessee.’

It further provides that:

‘The lessee will not mar, deface or alter the plastering, woodwork or any part of these premises and will indemnify the lessor for any such misuse.’

In January, 1915 and in August, 1915, the building commissioner decided under the authority of St. 1907, 1914, and 1915, supra, that automatic sprinklers should be installed in said buildings, and ordered the defendant, who was then the owner of the property, as now, to install them. When the plaintiff executed the lease she did not know of the decision of the building commissioner or of said order to the defendant. In November, 1920, the building commissioner caused notice to be sent to the defendant directing him to equip said buildings with automatic sprinklers; at the same time a similar notice was sent to the plaintiff as ‘lessee.’ St. 1907, c. 550, § 127, which is still in force, reads:

‘Every structure and part thereof and appurtenant thereto shall be maintained in such repair as not to be dangerous. The owner shall be responsible for the maintenance of all buildings and structures. The lessee under a recorded lease shall be deemed the owner under the provisions of this act.’

On November 27, 1920 the plaintiff in writing requested the defendant to comply with the order of the building commissioner. To this letter the defendant replied, in substance, that he declined to act in the matter, stating that he had undertaken and agreed to make necessary exterior repairs and that the installation of a sprinkler system is not a repair.

On September 20, 1921, an inspector of the building department reported to the building commissioner that he had inspected the buildings and ‘found that the basement and cellar is not provided with automatic sprinklers, same being in violation of the Acts of 1907, chapter 550, section 45, as amended by Acts of 1914, chapter 782, section 10, by section 4, chapter 352, Special Acts of 1915, and by Acts of 1920, chapter 440, and by Acts of 1921, chapter 476,’ above referred to, and ‘that the elevator vent and dumb-waiter shafts and stairways are not inclosed in basement of cellar, same being in violation’ of statutes above enumerated. On September 22, 1921, the building commissioner sent notices to the plaintiff and defendant, in which, after quoting the applicable statutes:

‘He ordered each of them to cause the buildings at 30 and 38 Hemenway street to conform to the aforesaid law forthwith in a manner satisfactory to the building commissioner of the city of Boston.’

Said order also contained the following statement:

‘Failure to comply with the law may be punished criminally by a fine not exceeding $500 or civilly by an injunction restraining the maintenance, use or occupation of said building.’

The court found and ruled:

‘That the duty of installing the sprinklers, and inclosing the elevator vent and dumb-waiter shafts and stairways in said buildings devolves upon the defendant as owner and lessor;’ that ‘to prevent a threatened eviction, in case the order of the building commissioner is not complied with, and to prevent the disturbance in their occupation by the tenants in the several apartments holding under leases from the plaintiff, and to comply with the terms of his lease, and to perform his duty as owner, the defendant should install the sprinkers and make the other changes ordered by the building commissioner;’ that ‘the plaintiff is likely to suffer irreparable damage if the orders of the building commissioner are not complied with by the defendant,’

--and ordered a decree to be entered requiring the defendant ‘to comply with the order of the building commissioner in respect to a sprinkler equipment and other fire protection devices.’ From the final decree which followed the order for such a decree the defendant appealed to this court.

[3] The improvements required by the building commissioner in the interest of public safety are manifestly alterations and additions to the structures, and are not the necessary repairs contemplated by the covenant of the lessor to make ‘necessary exterior repairs,’ or by that of the lessee to ‘make all interior repairs except those’ to be made by the lessor. Kirby v. Wylie, 108 Md. 501, 70 Atl. 213, 21. L. R. A. (N. S.) 129,129 Am. St. Rep. 451. It is fundamental law in this commonwealth that the lessee takes the hired premises, in the absence of warranty, fraud, or misrepresentation, in the condition and quality in which they are, and without any obligation on the lessor to keep them in a condition for use. The rule of caveat emptor applies, and it is for the lessee to ascertain whether the...