Steefel v. Rothschild

• Decision Date: 25 October 1904
• Citation: 179 N.Y. 273,72 N.E. 112
• Parties: STEEFEL et al. v. ROTHSCHILD.
• Court: New York Court of Appeals Court of Appeals

179 N.Y. 273

72 N.E. 112

STEEFEL et al.

v.ROTHSCHILD.

Court of Appeals of New York.

Oct. 25, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Barnard L. Steefel and others against Jacob Rothschild. From a judgment of the Appellate Division (82 N. Y. Supp. 1116) affirming a judgment in favor of defendant, plaintiffs appeal. Reversed.

See 72 N. Y. Supp. 171.

Edwin Countryman and Moses J. Harris, for appellants.

John J. Crawford and Charles H. Brush, for respondent.

CULLEN, C. J.

This action was brought-tenants against landlord-for damages occasioned under the following circumstances: In 1894 the defendant had erected a large structure at the corner of Fulton and Jay streets in Brooklyn, eight stories high above the street, with a cellar and subcellar below that level. The walls for the first two stories consisted principally of iron arches supported by columns of the same material, which rested on brick piers. The building presented a handsome and imposing appearance. The greater portion of it had never been occupied until the lease made to the plaintiffs. On June 21, 1898, the plaintiffs rented of the defendant, by a written lease, three of the six stores on the ground floor, with a portion of the next floor above, for the term of six months from September 1st, with the privilege of renewal for an additional term of five years, to be used as a store for the sale of clothing, men's furnishing goods, and similar articles, at a specified rent, payable monthly in advance. On September 1st the plaintiffs entered into possession of the demised premises under the lease, placing in the stores the necessary fixtures and appliances, as well as their stock of goods. On the 2d of December the municipal authorities, under the provisions of the charter, instituted an action in the Supreme Court to compel the defendant to secure or take down said building, alleging it to be unsafe and dangerous to the public, and at the same time took possession of the premises, and prevented the public from having access to the same, or passing along the sidewalk adjacent to the same. On December 5th the plaintiff vacated the demised premises. On December 19th, after a trial, judgment was entered in the action declaring said building unsafe and in imminent danger of falling, and directing the commissioner of buildings to remove the four upper stories of the building, and to take down and remove the brick walls on Fulton and Jay streets, from the roof down to and including the concrete foundation. The demolition thus adjudged was at once carried out. For the loss occasioned to the plaintiffs' fixtures and stock by their enforced removal, and for rent paid in advance, this action has been brought.

As the verdict was directed for the defendant, the plaintiffs are entitled to have the evidence considered in its most favorable aspect, and all disputed questions of fact and the inferences therefrom must be resolved in their favor. The evidence tended to show, if it did not conclusively establish, that the building had been in an unsafe and dangerous condition for some time prior to the lease to the plaintiffs; that these defects, which did not appear in the parts of the building leased to the plaintiffs, were wholly unknown to them, and were of such a character as reasonable diligence and inspection on their part would not have discovered. The complaint charged that at the time of the execution of the lease the defendant knew of the dangerous character of the structure, and concealed that condition from the plaintiffs. As to this allegation, it is claimed by the defendant that there was no proof that such knowledge was brought home to the defendant until in the latter part of July, after the lease had been signed, though it is clear that he knew that in some respects the building was weak before that time. However that may be, it was clearly shown that in July the defendant was apprised by his architect that by the defects in the foundations, by the cracking and subsidence of the piers, and from the improper character of the work, the building was in imminent danger of collapse. The architect advised the defendant of the measures necessary to remedy the defects and insure the safety of the building. The defendant, however, took no steps in the premises, but allowed the building to remain in its then present state. He in no manner apprised the plaintiffs of his information concerning the character of the structure, and nothing developed in its appearance to warn them of its insecurity until the proceedings taken by the municipal authorities.

The learned court below held the general rule of caveat emptor applied; that there was no covenant, express or implied, on the part of the landlord either to repair, or that the premises were suitable for the purpose for which they would be used; and, that the only effect of the premises becoming untenantable was to permit the plaintiffs, under the provisions of chapter 345, p. 592, of the Laws of 1860, to quit and surrender the premises, and relieve themselves from further payment of rent. The learned court said: ‘We find no suggestion that the landlord may be held liable for damages resulting to the tenant by reason of the building being untenantable.’ In answer to these views, it is first to be observed that the action is not for damages for eviction against the landlord, by suffering the premises to become untenantable. The fault, if any, which rendered the defendant liable, lay back of that. Doubtless the general rule is, as stated in Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438, that ‘a lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to the lessee or others lawfully upon the premises for their condition, or that they are tenantable, and may be safely and conveniently used for the purposes for which they are apparently intended.’ This doctrine has repeatedly been cited with approval. Edwards v. N. Y. & Harlem R. R. Co., 98 N. Y. 245, 50 Am. Rep. 659;Franklin v. Brown, 118 N. Y. 110, 23 N. E. 126, 6 L. R. A. 770, 16 Am. St. Rep. 744; Daly v. Wise, 132 N. Y. 306, 30 N. E. 837,16 L. R. A. 236. But the cases distinctly recognize the qualification that, to relieve the landlord from liability, there must be an absence of fraud. Thus in the Edwards Case Judge Earl said: ‘If he [the landlord] demised premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence which in many cases imposes liability upon...