Lyon v. Buerman

• Decision Date: 19 March 1904
• Citation: 57 A. 1009,70 N.J.L. 620
• Parties: LYON et ux. v. BUERMAN.
• Court: New Jersey Supreme Court

57 A. 1009

70 N.J.L. 620

LYON et ux.

v. BUERMAN.

Supreme Court of New Jersey.

March 19, 1904.

Action by Harvey P. Lyon and wife against August Buerman. On demurrer to the declaration. Sustained.

Argued June term, 1903, before GUMMERE, C. J., and DIXON, HENDRICKSON, and PITNEY, JJ.

Frederick J. Greenberg, for plaintiffs.

Samuel Kalisch, for defendant.

PER CURIAM. The plaintiffs, who were tenants of the defendant, seek to recover compensation for injuries received by Mrs. Lyon on September 16, 1902, through the defective condition of the leased premises. The declaration alleges that the lease was made September 1, 1902; that it contained a warranty that the premises were in first-class tenantable condition and repair, and fit for occupation by the plaintiffs; that it thereby became the duty of the defendant to put them in good, safe, and substantial repair; that he neglected to perform this duty, and left them in an unsafe and dilapidated state without informing the plaintiffs of their condition. Upon these facts the liability of the defendant to make compensation for the injuries received by Mrs. Lyon is predicated. We do not think that they show liability. His responsibility arises out of, and is limited by, his warranty that the premises were in first-class tenantable condition at the time of making the lease. The declaration contains no express averment that they were not in such condition at that time, nor is this the necessary implication to be drawn from the facts stated. When it is borne in mind that in passing upon the sufficiency of a pleading every averment is to be construed most strongly against the pleader, and that nothing is to be presumed in his favor, the conclusion to be drawn from these facts is that the premises became out of repair between the time of the making of the lease and the time of the happening of the accident. It is plain, therefore, that no breach of the warranty is shown. Nor is the declaration helped by the allegation that it was the duty of the defendant to put the premises in repair; nor by the further allegation that he neglected to inform the plaintiffs that they had not been repaired, and were in an unsafe condition. An allegation, in a declaration, that a duty rests upon a defendant to do a specified thing, without setting forth such facts as show the existence of the duty, is nugatory. A landlord is under no obligation to his tenant to make repairs which become necessary during the term, in the absence...