When the legislature attempts, by positive enactment, to remedy an evil that has apparently grown up with the common law, it may be fairly assumed that the evil to be cured is fully appreciated, and that by apt words the remedy is provided for, as it is, and should be, understood by the law-making power. It is very clear to my mind that the provisions of the statute of 1860 (chap. 345) were intended to relieve a tenant from the payment of rent where the demised property was destroyed by fire, or from some other kindred cause, resulting from some sudden and unexpected action of the elements. The rule of the common law had become very obstinate, that, in such calamities, the tenant must be the sufferer, unless in his lease he had provided against it, which was very seldom done, as the contingency was never at the time thought of by either party. The courts, although feeling constrained to observe the rule, have *Page 456 very frequently suggested its injustice, and it is not too much to say that such suggestions, coupled with the hardships oftentimes produced, resulted in the remedial statute of 1860. It was intended by this act to relieve the tenant from the damaging effect of extraordinary disasters not anticipated by either party when the demise was made.
The statute of 1860 never was intended to have any effect upon the rule of the common law requiring the tenant to make ordinary repairs. In that rule there never was any hardship, and there was no occasion for special legislation in regard to it. The results of ordinary decay, or as it is sometimes said "wear and tear," would ordinarily be visible only to a tenant. The landlord having parted with his estate for a year or term of years, had no right to enter upon his property without the permission of his tenant, unless upon some default of the latter he entered under the authority of law.
In construing a statute which operates to change a principle of the common law, we are to be guided by rules of construction that have been long approved, and the most prominent of which, on the subject of statutes altering the common law, is that adopted by Chief Justice TREVOR in the case of Arthur v. Bohenham in the reign of Queen Anne (11 Modern, 149, 161), which, in some form, has been repeated in the most reliable digests, and supported by many prior and subsequent adjudications in the courts. He said that "the general rule in the exposition of all acts of parliament is that, in all doubtful matters, and where the expression is in general terms, they are to receive such a construction as may be agreeable to the common law in cases of that nature, for statutes are not presumed to make any alteration in the common law, further or otherwise than the statute does expressly declare; therefore, in all general matters the law does not presume the act did intend to make any alteration, for if the parliament had had that design they would have expressed it in the act." (See also Dwarris on Statutes, 564; Potter's Dwarris on Statutes and Constitutions, 184, 185, *Page 457 186.) Applying this rule to the present case, it seems to me entirely clear that the statute of 1860 does not change or impair the obligation of a tenant to make ordinary repairs, unless he is relieved from that duty by some provision in his lease.
It was urged on the part of the defendant that he was under no obligation to repair the roof of the building, so as to stop the leakage complained of, because, by reason of some express convenants in the lease relating to specified repairs to be made by the tenant, no further obligation on his part, tending in that direction, could be implied. It is, perhaps, sufficient to say, in answer to this objection, that no such question appears to have been raised on the trial. But I find no express covenants in the lease relating to the subject of repairs, except as to the "Croton water and gas-pipes and fixtures," and that the defendant should conform to the corporation ordinances in relation to the closing of hatchways and guards thereof, and keep the guards in repair, and pay all fines imposed for any violation of the ordinance in respect thereto. These are not in any sense ordinary repairs, within the meaning of the common-law rule. They are extraordinary and exceptional, and, unless specially provided for in the lease, the defendant would not have incurred the obligation, and they afford no support to the point taken.
It is finally said that the case ought to have been submitted to the jury, but upon what question the case does not disclose. There was no conflict of evidence or dispute of facts. The dispute arose about the obligation to make, what seems very clearly to have been, a mere ordinary repair, and, as we think the duty was upon the defendant, the judgment must be affirmed, with costs.
All concur.
Judgment affirmed. *Page 458