Kirshenbaum v. Gen. Outdoor Advertising Co.

• Decision Date: 03 March 1932
• Citation: 258 N.Y. 489,180 N.E. 245
• Parties: KIRSHENBAUM v. GENERAL OUTDOOR ADVERTISING CO., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

258 N.Y. 489

180 N.E. 245

KIRSHENBAUM

v.GENERAL OUTDOOR ADVERTISING CO., Inc., et al.

Court of Appeals of New York.

March 3, 1932.

Action by Jacob J. Kirshenbaum against the General Outdoor Advertising Company, Inc., and another. From a judgment of the Appellate Division (233 A. D. 821, 250 N. Y. S. 951) affirming a judgment of the Trial Term entered upon a verdict of the jury in favor of plaintiff, defendants appeal.

Reversed, and claim dismissed.

CRANE and HUBBS, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Richard T. Greene, Daniel S. Murphy, and Vincent W. Farley, all of New York City, for appellant General Outdoor Advertising Co., Inc.

Manfred W. Ehrich and Benjamin M. Robinson, both of New York City, for appellant and respondent Chapman.

J. W. Friedman and I. Gainsburg, both of New York City, for respondent.

KELLOGG, J.

The plaintiff was the occupant of a store in a one-story building under a lease from the owner, the defendant Chapman. The landlord retained possession of the roof of the building and thereafter rented the same to the defendant General Outdoor Advertising Company, Inc. That defendant, as permitted by the lease, erected upon the roof a framework from which to display advertisements for its customers. Thereafter, on several occasions, rain collected upon the roof, and seeping through, dripped into the plaintiff's store. The plaintiff tenant motified the defendant landlord, who made repairs. The roof continued to leak, and, finally, in a heavy rainstorm, water came through in great quantities, seriously damaging merchandise piled upon shelves in the tenant's store. This action was thereafter brought by the tenant to recover damages alleged to have resulted from the landlord's negligence in failing adequately to repair the proof. The landlord, the defendant Chapman, served an answer on the General Outdoor Advertising Company, in which, among other things, she asserted liability on the part of that defendant, under an indemnity clause contained in the lease to it, to make reimbursement for all payments of damages which the defendant landlord might be required to make to the plaintiff, or other persons, arising by reason of defects in the roof occupied by it. The jury found the defendant landlord guilty of negligence and awarded the plaintiffs substantial damages. Judgment followed against the defendant Chapman in favor of the plaintiff, and against the defendant General Outdoor Advertising Company in favor of the defendant Chapman. That judgment has been affirmed.

The lease to the plaintiff from the defendant Chapman contained a clause exempting the latter from all liability to the former for any injury to person or property ‘caused by or resulting from steam, electricity, gas, water, rain, ice or snow which may leak or flow from or into any part of said building,’ and this ‘whether the said damage or injury shall be caused by or be due to the negligence of the landlord, the landlord's agent, servant, employee or not.’ The trial judge held that this clause did not apply, and instructed the jury that, if the landlord, after receiving notice of the leaks, did not reasonably and seasonably make repairs, she was liable to the tenant for damages occasioned by the omission. The defendant took exception to this charge and requested the court to charge as follows: ‘Will your Honor charge the jury that under the provisions of Section 16 of the lease to the plaintiff, the defendant Chapman was absolved from liability either for her own negligence or the negligence of her agents?’ The court declined so to charge. It likewise denied a motion, made at the close of the evidence, that the complaint be dismissed.

In Kessler v. The Ansonia, 253 N. Y. 453, 171 N. E. 704, we dealt with the question of liability, on the part of the owner of an apartment house, for injury done to personal property stored in the rooms of a tenant, through the escape of steam from radiators designed to heat the rooms. In that case the lease provided: ‘That the lessor shall not be liable for any damage to any property, at any time, in said premises or building, by leakage of Croton or other water, steam, or gas, from or into any part of said building in which the demised premises are situated.’ Id., 227 App. Div. 290, 291, 237 N. Y. S. 537. The tenant had informed the landlord that steam was escaping. ‘Nothing was done, although the defendant had been given timely warning and knew of the defective piping.’ Id., 253 N. Y. page 455, 171 N. E. 704, 705. We held, citing the words of Judge Lehman in Drescher Rothberg Co. v. Landeker (Sup.) 140 N. Y. S. 1025,that the immunity clause meant merely that the landlord should be exempt from liability for damage caused ‘by wear and tear, or inherent defects, or the action of the elements,’ but that it did not ‘exempt him from his liability to repair actual defects, when called to his attention, or from acts of affirmative negligence.’ Id., 253 N. Y. page 455, 171 N. E. 704, 705. We have here a very different clause providing for immunity. The landlord was to be exempt whether or not ‘the said damage or injury shall be caused by or be due to the negligence of the landlord, the landlord's agent, servant, employee or not.’ Language more comprehensive could hardly be employed. Explicitly it provides that the landlord shall not be liable for damage due to leakage, no matter how negligent the landlord, in respect thereto, may have been. We think that the clause, if it did not contravene public policy, relieved the landlord from any obligation to make repairs which might otherwise have arisen.

‘Contracts are illegal at common law, as being against public policy, when they are such as to injuriously affect or subvert the public interests. 1 Story, Eq. Juris. § 260n; Chesterfield v. Janssen, 2 Vesey, Sr. 125, 156.’ Per Gray, J., in Johnston v. Fargo, 184 N. Y. 379, 384,77 N. E. 388, 390,7 L. R. A. (N. S.) 537, 6 Ann. Cas. 1. That common carriers cannot secure immunity from liability for damages caused by their negligence is the established doctrine in this country. ‘The rule rests on broad grounds of public policy, justifying the restriction of liberty of contract because of the public ends to be achieved.’ Per Hughes, J., in Santa Fé, P. & P. R. Co. v. Grant Bros. Const. Co., 228 U. S. 177, at page 184, 33 S. Ct. 474, 476, 57 L. Ed. 787. If such were not the rule, all common carriers might exact from passengers and shippers stipulations for immunity, and, in consequence, cease all effort to make the business of transportation reasonably safe, a result which would seriously affect the welfare of all the public; this because the superior position of the carrier might compel every shipper and traveler to accede to the stipulations. ‘The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains.’ Per Bradley, J., in New York C. R. Co. v. Lockwood, 17 Wall. 357, 379, 21 L. Ed. 627. It has been held that this rule condemning stipulations for immunity applies only where the subject-matter of a contract made by a railroad company is the carriage of freight or passenger; that it does not apply when the railroad contracts otherwise than as a common carrier, for then ‘theose who choose to enter into engagements with it are not at a disadvantage.’ Santa Fé, P. & P. R. Co. v. Grant Bros. Const. Co., supra, at page 185 of 228 U. S., 33 S. Ct. 474, 477. ‘A tug is not a common carrier of the tow. The owners of a tug may restrict their liability by specialagreement. No rule of public policy is involved.’ Per Pound, J., in Graves v. Davis, 235 N. Y. 315, 319, 139 N. E. 280, 281. Stipulations between a landlord and tenant, determining which shall bear a loss arising from norepair or misrepair of the tenement, and which shall be immune, are not matters of public concern. Moreover, the two stand upon equal terms; neither the one nor the other is under any form of compulsion to make the stipulations; either may equally well accept or refuse entry into the relationship of landlord and tenant. We think it clear that publice policy does not condemn the immunity clause voluntarily agreed upon by these parties.

It is manifest that the judgment must be reversed for the errors of the trial judge in instructing the jury that the landlord, for merely failing adequately to repair after notice given, might be held liable, and for its refusal to charge, when requested, the converse of the proposition. The interesting question is whether or not the action should have been, or should now be, dismissed.

A lessor of land who undertakes to make repairs for a tenant, though not obligated by the lease so to do, and, in making them, through carelessness or unskillfulness, creates insecurity where formerly there was safety, is liable for the damages thereby occasioned. Am. Law Inst. Restatement of the Law of Torts, § 232; Feeley v. Doyle, 222 Mass. 155, 109 N. E. 902, L. R. A. 1916F, 1121;Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548;Pratt, Hurst & Co. v. Tailer, 186 N. Y. 417, 421,79 N. E. 328, 329. ‘Of course, it is perfectly plain that the landlords would not be relieved of liability for leakage occasioned by their own action or that of their agents in actually making holes in the roof.’ Per Willard Bartlett, J., in Pratt, Hurst & Co. v. Tailer, supra. The liability in such case does not spring from a gratuitous undertaking to repair, nor from the relationship of landlord and tenant. The liability is in tort; it attaches to landlords as it would to strangers, having no relationship with tenants, who ‘create a risk of harm to others,’ by some positive act. Bohlen,...