Franklin v. Brown

• Decision Date: 20 December 1889
• Parties: FRANKLIN v. BROWN.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 110

23 N.E. 126

FRANKLIN

v.BROWN.¹

Court of Appeals of New York, Second Division.

Dec. 20, 1889.

Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment in favor of the plaintiff entered upon the report of a referee.

This action was brought to recover the rent reserved by a lease of a furnished dwelling-house. The answer pleaded a counter-claim for damages alleged to have been sustained by the defendant on account of a breach of an implied covenant that said house was fit for immediate and permanent occupation. The referee found that on the 14th of September, 1883, the parties entered into a written agreement whereby the plaintiff leased to the defendant the dwelling-house known as ‘No. 6 West Seventeenth Street,’ in the city of New York, for the term of one year, at the annual rental of $3,100, and that the defendant covenanted to pay said sum in equal monthly payments, commencing on the 1st day of November thereafter. He also found due performance on the part of the plaintiff, and a failure to perform on the part of the defendant, who omitted to pay the rent which became due for the months of July, August, and September, 1884, the last three months of the term. Upon the request of the defendant, the referee further found that said house was leased to her to be used as a private residence; that the furniture therein was a large and important element in determining the amount of rent to be paid; that, during the time covered by the lease, noxious gases, and strong, unhealthy, and disagreeable odors, ‘existed generally, and in very large quantities, throughout said furnished dwelling-house,’ making the defendant sick, and rendering the house unhealthy and unfit for human habitation, and that she incurred certain expenses as the immediate and necessary result of occupying said premises. The referee, however, added to these requests, as found, that said gases, odors, etc., did not arise in or from any part of said house, but that they came from the adjoining premises, which were used for a livery stable, and that neither party knew of their existence when the lease was executed.

John G. Agar, for appellant.

A. H. Vanderpool, for respondent.

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

It is not claimed that any deceit was practiced or false representations made by the plaintiff as to the condition of the house in question, or its fitness for the purpose for which it was let. The defendant thoroughly examined the premises before she signed the lease, and she neither ceased to occupy nor attempted to rescind until the last quarter of the term. Neither party knew of the existence of the offensive odors when the contract was made. They were not caused by the landlord, and did not originate upon his premises, but came from an adjoining tenement. The lease contained no covenant to repair, or to keep in repair, and no express covenant that the house was fit to live in. The defendant, however, contends that, as the demise was of a furnished house for immediate use as a residence, there was an implied covenant that it was reasonably fit for habitation. It is not open to discussion in this state, that a lease of real property only, contains no implied covenant of this character, and that, in the absence of an express covenant, unless there has been fraud, deceit, or wrong-doing on the part of the landlord, the tenant is without remedy, even if the demised premises are unfit for occupation. Witty v. Matthews, 52 N. Y. 512;Jaffe v. Harteau, 56 N. Y. 398;Edwards v. Railroad Co., 98 N. Y. 245;Cleves v. Willoughby, 7 Hill, 83;Mumford v. Brown, 6 Cow. 475;Westlake v. De Graw, 25 Wend. 669; Tayl. Landl. & Ten. (8th Ed.) § 382; Wood, Landl. & Ten. § 379.

But it is argued that the letting of house-hold goods for immediate use raises an implied warranty that they are reasonably fit for the purpose, and that, when the letting includes a house furnished with such goods, the warranty extends to the place where they are to be used. This position is supported by the noted English case of Smith v. Marrable, 11 Mees. & W. 5, which holds that, when a furnished house is let for temporary residence at a watering place, there is an implied condition that it is in a fit state to be habited, and that the tenant is entitled to quit upon discovering that it is greatly infested with bugs. This case has been frequently discussed, and occasionally criticised. It was decided in 1843, yet during that year it was distinguished and questioned by two later decisions of the same court. Sutton v. Temple, 12 Mees. & W. 52; Hart v. Windsor, Id. 68. It was approved and followed in 1877 by Wilson v. Finch Hatton, L. R. 2 Exch. Div. 336, in which, however, there was an important fact that did not appear in the earlier case, as before the lease was signed there was a representation made in behalf of the landlord that she believed ‘the drainage to be in perfect order,’ whereas it was in fact defective, and the contract was promptly rescinded on this account. The principle that there is an implied condition or covenant in a lease that the property is reasonably fit for the purpose for which it was let, as laid down in Smith v. Marrable, has been frequently questioned by the courts of this country, and has never been adopted as the law of this state. Edwards v. Railroad Co., 98 N. Y. 248; Howard v. Doolittle, 3 Duer, 475; Carson v. Godley, 26 Pa. St. 117; Dutton v. Gerrish, 9 Cush. 89;Chadwick v. Woodward, 13 Abb. N. C. 441;Coulson v. Whiting, 14 Abb. N. C. 60; Sutphen v. Seebass, Id. 67; Meeks v. Bowerman, 1 Daly, 99. We have been referred to no decision of this court involving the application of that principle to the lease of a ready-furnished house, and it is not necessary to...