Thomas v. Kingsland

• Decision Date: 17 January 1888
• Citation: 108 N.Y. 616,14 N.E. 807
• Parties: THOMAS v. KINGSLAND et al.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 616

14 N.E. 807

THOMAS

v.KINGSLAND et al.

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, court of common pleas, city and county of New York.

Action for damages caused by failure to repair a rented building, by Andrew J. Thomas, plaintiff, against George A. and Ambrose C. Kingsland. Judgment for defendants, and plaintiff appeals.

James Flynn, for appellant.

John B. Taylor, for respondents.

FINCH, J.

The covenant of the landlords was ‘to put and keep’ the roof of the leased premises in good repair, and this action was brought to recover damages for an alleged breach of that condition. The specific inquiry was submitted to the jury whether the defendants failed to repair the roof in question within a reasonable time after notice that repairs were needed, and the jury answered, ‘They did not fail,’ and rendered a general verdict for the defendants. The plaintiff now argues that, notwithstanding that finding, there should have been a recovery, because early in the tenancy, and before any notice of a leak was given, the roof was out of repair, and the agreement to put it in repair, as well as keep it so, was a confession that it was out of order to the knowledge of the landlords, and so no notice was necessary. The contention is inconsistent with the ground taken at the trial. At the close of the charge of the court, and before taking the final exceptions to it, the defendants' counsel said: ‘Your honor charged that the defendants were not liable on their covenant to put and keep the roof in repair unless notice was first given them to repair it, and they failed to do so after such notice. I now ask your honor to charge that if the jury find that the plaintiff once notified the defendants that the roof was out of repair, and leaking, it was their duty to put it in good repair, and keep it in that condition during the entire time of the lease thereafter, without further notice.’ That request conceded the necessity of notice to make it defendants' duty to ‘put’ the roof in repair, and was inconsistent with the position now sought to be maintained. The exceptions afterwards taken to the charge must be assumed to have been taken in harmony with the request, especially as they suggest nothing to the contrary. But beyond this difficulty there is another. The covenant must have a natural and reasonable interpretation, and I do not think the phrase, ‘put and keep in repair,’ necessarily implies that the roof was...