Elizabeth W. Chapman made a lease dated August 21, 1925, to Jacob J. Kirshenbaum, of the store and cellar known as 369 East Fordham road, in the borough of The Bronx, city of New York, for a term commencing September 15, 1925, to the end of August 31, 1928, at an annual rental of $3,000. The store was one of a row of one-story buildings known colloquially as "taxpayers," and numbered 365, 367, 369, 371 and 373, all owned by Mrs. Chapman. Three sixty-nine, leased to Kirshenbaum, was the center store, with no access to the roof. Although the store and cellar constituted the whole of the building, the control and possession of the roof were retained by the landlord. In the lease therefor there ran this provision: "The landlord also reserves the right to place upon the top or roof of said premises, or on the side or exterior walls thereof, any electric or other sign or signs for advertising purposes *Page 500 and such rights shall belong solely and exclusively to the landlord."
On September 18, 1926, Elizabeth W. Chapman leased to the General Outdoor Advertising Co., Inc., a New Jersey corporation, the entire roof of the building, known as 365 to 373 Fordham road, at $1,200 a year, for the erection of advertising signs. Thereafter, the lessee, under this lease, erected over Kirshenbaum's store a sign fourteen feet high, weighing 14,455 pounds, fastened through the roof to the beams of the building. The General Outdoor Advertising Co., Inc., made this covenant with the landlord: "The Tenant does hereby undertake and agree on and after the day it constructs and maintains its signs and not otherwise, for and during the term of this agreement to make all necessary repairs to the entire roof of said building at its own expense and to keep the said roof in good order and repair throughout the term. * * *
"The Tenant shall indemnify and save harmless the landlord from all liability however arising to any and all persons whomsoever, whether for personal injuries or otherwise, by reason of the erection, maintenance, operation, unsafety of condition of any sign or signs or any part thereof, or any device or appliance used in connection therewith, and from any damage or injury resulting to any persons whomsoever from defects in or defective condition of that portion of the roof controlled by the Tenant."
Kirshenbaum, the tenant of No. 369, maintained a store for the sale of women's dress trimmings, piece goods, draperies and lamp shade trimmings, and had considerable stock on hand. In May of 1927 the roof commenced to leak and do damage to the tenant's goods. The owner or her agents were notified, and thereupon men were sent by the General Outdoor Advertising Co., Inc., to make repairs. Their statements that insufficient money had been furnished to do the repairs properly was reported *Page 501 to the owner or her agents. The same thing happened again in June and in August, the owner being notified, and undertaking to make the repairs. Finally, on September 1st, water accumulating to the depth of six or seven inches upon the roof, broke through in many places, flooded the store and did the damage for which this action has been brought.
Because the General Outdoor Advertising Co., Inc., is liable on its covenants, above quoted, to the landlord, for any loss sustained by the landlord, through defective roofing or insufficient repairs, we will not make any distinction between these defendants, but hereafter refer to them as "the landlord." If Elizabeth W. Chapman is liable to the tenant, the General Outdoor Advertising Company must pay the damage.
Under the terms of Kirshenbaum's lease, is the landlord liable for the loss sustained? That lease contains the following provision, which is pleaded as an absolute bar to a recovery.
"No Liability.
"Sixteenth. As a consideration for the making of this lease the Landlord shall not be liable for any failure of water supply or electric current, nor for injury or damage which may be sustained to person or property by the Tenant or any other person 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 or from the breakage, leakage, obstruction or other defect of the pipes, wiring, appliances, plumbing or lighting fixtures of the same, the condition of said premises or any part thereof, or through the elevator, if any, or from the street or sub-surface, or from any other source or cause whatsoever, 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, nor for interference with light or other incorporeal hereditaments, provided such interference is caused by *Page 502 anybody other than the Landlord, or caused by operations by or for the City in the construction of any public or quasi-public work; neither shall the Landlord be liable for any defect in the building, latent or otherwise."
The proposition submitted is based upon these established facts: the landlord retained full and complete possession of the roof, making no agreement to repair, and attempting to relieve herself from any and all consequences by reason of the "no liability" clause, above quoted. The tenant made no agreement or covenant to repair the roof and had no rights thereon or access thereto. However, when the event occurred, and the roof sprung a leak, the tenant informed the landlord, and she, for a period of three months, undertook and attempted to make repairs, but failed to do so properly, resulting in loss and damage to the tenant. Who is to suffer the loss?
The language in this "no liability" clause is broader than that of any other case called to our attention. It expressly states that the landlord shall not be liable for any damage sustained by the tenant resulting from water, which may leak or flow from any part of the building, whether the damage shall be caused by, or due to the negligence of, the landlord or her agent. Similar cases there have been where the lease exempted the landlord from any damage or injury by water (Kessler v. The Ansonia,253 N.Y. 453); from any damage or injury by water or from the negligence of other tenants (Levin v. Habicht,45 Misc. Rep. 381); from damage caused by leakage of water pipes (Lewis Co. v. Metropolitan Realty Co., 112 App. Div. 385); from damage by water (Botwin v. Rothkopf Realty Co., 128 Misc. Rep. 15); and from damage by water or from any other injury resulting from the negligence of agents or employees (Garrity v. Propper,209 App. Div. 508). In Drescher Rothberg Co. v. Landeker (140 N Y Supp. 1025), in which Judge LEHMAN, of this court, wrote the opinion, the exemption was from damage *Page 503 by water or any other injury resulting from the carelessness or negligence of agents or employees. In all these cases the exemption from liability was strictly and narrowly construed so as to prevent the landlord escaping liability for his own act of negligence or for his failure to repair after actual notice had been received of the defective condition. Mr. Justice GILDERSLEEVE, in Randolph v. Feist (23 Misc. Rep. 650, 651) used expressions which have been repeated in subsequent cases to the effect that the words "not be liable for any damage caused by leakage of water," referred to leakage which may result from ordinary wear and tear or the carelessness of tenants, but did not refer to the negligence of a landlord in putting on a new roof. So, too, in Garrity v. Propper (supra) the Appellate Division of the First Department stated that the exempting words did not relieve the landlord from his own negligence. So far the courts have not decided that a landlord may exempt himself from liability for his own negligence causing damage. The above cases state very frankly that the "no liability" clauses have been narrowly and strictly construed to limit the effect of all such exemptions. (See, also, Railton v. Taylor, 20 R.I. 279; LeVaite v. Hardman Estate, 77 Wn. 320; Worthington v.Parker, 11 Daly, 545.) Tuttle Co. v. Phipps (219 Mass. 474) was decided on the authority of Fera v. Child (115 Mass. 32), a case of passive negligence.
We in this case have a fuller exemption. The words cover damage caused by the negligence of the landlord and his agent's servants and employees. I construe these to mean, as applicable to this case, that if the owner failed to repair, even although she knew of the leaky condition of the roof, there would be no liability. The roof was reserved for the exclusive use of the landlord, and under this "no liability" clause there was no duty upon her part to repair it or keep it in repair for the benefit of the tenants. What rights the tenant had if *Page 504 the premises, from non-repair, became untenantable, is another question.
But Elizabeth W. Chapman did more than remain passive or indifferent to the condition of the roof. On being informed of the leaks, she or her agent undertook to make repairs, and assured the tenant that the defects had been remedied. The tenant remained after these assurances. Each time of leakage repair men came upon notification. The evidence justified the finding that the tenant relied upon these acts and representations and was not neglectful in trusting the safety and security of the store to the attention of the landlord. That the roof was not properly repaired is apparent from the damage of September first, when six inches of water gathered on the roof, poured through in many places, and damaged a large quantity of the tenant's property.
For the purposes of this argument, the negligence of the landlord in making repairs has been conceded, and we are referred to the "no liability" clause as a full protection against the consequences. That clause was not intended, in our opinion, to cover the circumstances here stated. Whatever protection it may have afforded the owner, from failing or neglecting to act, it did not relieve her from the consequences of work negligently performed. Having undertaken after the lease to voluntarily make the repairs, she was bound to use care. (Marks v. NambilRealty Co., 245 N.Y. 256; Marston v. Frisbie, 168 App. Div. 666; Miller v. International Harvester Co., 193 App. Div. 258. )
This was not the view taken by the trial judge in his charge to the jury. Applying the ruling in the cases above cited, he said that the landlord was liable for her negligence in failing to make repairs after notice of defect. To this an exception was taken. This error was harmless, as both sides admitted that after notice the landlord's agents attempted to make repairs. The entire roof was in the possession of the landlord and the damage was *Page 505 caused by the negligent manner in which the repairs were made. The work done was not sufficient; having been undertaken, it was not completed. The negligence is not the question before us for review; therefore, this part of the charge is immaterial at this time. The point of the appeal is the effect of the "no liability" clause upon this failure to exercise care in making repairs.
The judgments below should be affirmed, with costs.
CARDOZO, Ch. J., POUND, LEHMAN and O'BRIEN, JJ., concur with KELLOGG, J.; HUBBS, J., votes for a new trial on the ground that the question of defendant's negligence in attempting to repair is a question of fact; CRANE, J., dissents in opinion.
Judgment accordingly.