Land v. Fitzgerald

• Decision Date: 09 June 1902
• Citation: 52 A. 229,68 N.J.L. 28
• Parties: LAND v. FITZGERALD.
• Court: New Jersey Supreme Court

52 A. 229

68 N.J.L. 28

LAND

v. FITZGERALD.

Supreme Court of New Jersey.

June 9, 1902.

(Syllabus by the Court.)

Action by Thomas F. Land against Bartholomew Fitzgerald. Demurrer to declaration sustained.

Argued February term, 1902, before GUM-MERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON, JJ.

Young & Arrowsmith, for plaintiff.

McEwan & McEwan, for defendant.

VAN SYCKEL, J. The declaration in this case contains three counts. The first count alleges that the defendant was the owner of a dwelling house on which he had carelessly constructed and maintained a chimney which was insecure and dangerous by reason of its negligent and improper construction; that the danger was known to the defendant and was not patent or known to the plaintiff; that the defendant rented a portion of the said house to the plaintiff, who entered into possession and was injured in the falling of said chimney. The second count alleges that the defendant was the owner of a dwelling house on which he had carelessly constructed and maintained a chimney which was insecure and dangerous; that the danger was known to the defendant, but was not patent or known to the plaintiff; that the plaintiff was upon the premises by the invitation of the defendant, and while so there the said chimney, by reason of its faulty and careless construction, fell upon and injured the plaintiff. The third count alleges that the defendant was the owner of a dwelling house on which he had negligently constructed and maintained a chimney which was insecure and dangerous; that the danger was known to the defendant, but was not patent or known to the plaintiff; that the plaintiff was lawfully upon said premises, and while so there the said chimney fell upon and injured him. To each of these counts the defendant demurred.

Mr. Justice Depue, in his elaborate opinion in Clyne v. Helmes, 61 N. J. Law, 358, 39 Atl. 767, shows that it is well-settled law that on a demise of a house or lands there is no contract or condition implied that the premises shall be fit and suitable for the use for which the lessee required them. He cites with approval the declaration of Chief Justice Erie in Robbins v. Jones, 15 C. B. (N. S.) 221, that a landlord who lets a house in a dangerous state is not liable to the tenants, customers, or guests for accidents happening during the term, for, fraud apart, there is no law against letting a tumbledown house, and the tenant's remedy is upon his contract, if any. He also adopted the views of Mr. Justice Dixon in Mullen v. Rainear, 45 N. J. Law, 520, that there is no implied duty on the owner of a house which is in a ruinous and unsafe condition to inform a proposed tenant that it is unfit for habitation, and no action will lie against him for an omission to do so in the absence of express warranty or deceit. In that case the injury was occasioned by the...