I cannot concur in the judgment about to be pronounced by the court.
The defendant claims that he was relieved of the obligation to pay rent: 1. By constructive eviction from the premises; and, 2. By the act in relation to the rights and liabilities of owners and lessors and of lessees and occupants of buildings. (Laws of 1860, chap. 345.) The lease in question is for the term of one year from October 22, 1884. The defendant had occupied the same premises during the year immediately preceding, and it does not appear from the evidence that there was any change in their condition, during the second term, for which the landlord was responsible. There was no covenant to repair on his part, or to furnish water, heat, light or any other convenience for the use of the tenant. The premises are described simply as "the first apartment in the Soncey East Side, known as No. 49 West Fifty-seventh street." Nothing else was covered by the lease, and aside from this there is no suggestion therein that the property let was a portion of an apartment-house. The plaintiff did not personally occupy any part of the building, except an office in the basement, but there were ten or eleven tenants besides the defendant.
The facts relied upon to constitute an eviction are: 1. That from the middle of January until the 1st of February, 1885, *Page 354 the defendant was annoyed by coal gas in his bed-room that came from an upper apartment, and was caused by the burning of cannel coal by the tenants thereof. 2. During the same period he was annoyed by smoke in the front parlor, that was apparently caused by the occupant of an apartment underneath. 3. About the first of February certain noises, called by the witnesses "explosions," were heard, accompanied by the jarring of the building, cracking of the ceilings and walls, and other features that were both annoying and alarming. The smoke and gas, so far as they were substantial evils, were temporary, but the noises continued until the twenty-eighth of February, when the defendant moved out, and he did not again occupy the premises during the remainder of his term. The plaintiff was not shown to be responsible for any of these results, unless responsibility can be founded upon the bare fact that he owned the building. This is not enough, in the absence of any covenant whatever on his part, because the tenant took the premises as they were, and a rule in the nature ofcaveat emptor applies. (Franklin v. Brown, 118 N.Y. 110.)
The lessee of real property runs the risk of its condition, unless he has an express agreement from the lessor in relation to the subject. There is no implied covenant that it is or that it will continue to be fit for occupancy. (Franklin v. Brown,supra.) If, after the execution of the lease, a sudden and serious physical injury happen to the building, the statute of 1860 may afford relief, but not upon the ground of eviction. The law does not require a landlord to prevent his tenants from annoying each other or from trespassing upon each others rights, but it leaves them to seek redress for injuries of that character from those who directly inflict them.
I think that there was no eviction, either actual or constructive, because there was neither wrongful act nor omission of duty on the part of the landlord. Where a lessor expels his lessee from the premises or compels him to leave by causing or maintaining a nuisance thereon, he can collect no rent after the tenant leaves, because one who deprives another of the consideration on which his obligation was founded can recover *Page 355 no damages for its non-fulfillment. (Dyett v. Pendleton, 8 Cow. 727.) But a nuisance that is neither created nor connived at by the landlord, and which, so far as appears, he was unable to prevent, will not justify the claim of eviction, as that term is understood in the law. (Gilhooley v. Washington, 4 N.Y. 217;Franklin v. Brown, supra.)
The statute of 1860 (Chap. 345), was passed to relieve a tenant from the harsh rule of the common law, which required him to pay rent, even after the demised premises had been totally destroyed without negligence or fault on his part. It provides for two contingencies, when the building has been either "destroyed" or "injured," and this court has held that the former alternative "has reference to a sudden and total destruction by the elements, acting with unusual power, or by human agency," and the latter "to a case of injury to the premises, short of a total destruction, occasioned in the same way." (Suydam v. Jackson,54 N.Y. 450, 455.) This statute was not designed to relieve tenants from all evil results that might flow from their omission to require appropriate covenants in their leases, but simply from such a substantial injury to the premises as rendered them untenantable or uninhabitable. There was no proof in this case of injury by the elements, nor enough evidence of injury by human agency to support a finding to that effect. There was no evidence of injury to the building from any cause, except that certain cracks appeared in the walls, mantels, etc., that were claimed to render it unsafe. Some of these cracks were there during the first term of the defendant. The main cause of complaint, however, was apprehended, not actual danger. The inconvenience was undoubtedly serious, but "untenantable" requires more than that to satisfy its meaning. Can a building that is actually occupied, as this continued to be after the defendant had removed therefrom, by ten different families, be termed untenantable within the meaning of the statute? It was, in fact, tenanted, or held in actual occupation, by many human beings, without injury during the whole of defendant's term. The legislature required that it should not only be untenantable, *Page 356 but also unfit for occupancy, owing to destruction or injury, before exemption from liability to pay rent could be successfully claimed. The noises were not caused by any sudden injury to the premises, but were the result of a defect that existed when the lease was signed. None of the injuries to the building were shown to be sufficient to render it untenantable and unfit for occupancy, unless the cracks made it unsafe. Some evidence was received upon this subject, the admissibility of which is questioned by the appellant. When the defendant was upon the stand, after testifying as to the gas, smoke, cracks and "explosions," he was asked this question: "Did you consider, from all these manifestations that you saw, that the building was really dangerous?" The plaintiff objected to the question as incompetent and immaterial, but the objection was overruled. Exception was taken, and the witness answered that he did. Even if the tenant honestly considered the building unsafe, he had no right to leave it and claim exemption from the further payment of rent, unless it was in fact unsafe. His opinion upon the main question of fact was incompetent, and tended to mislead the jury.
Notwithstanding the admission of this evidence the plaintiff was not permitted to show by a competent architect "the manner in which the building was constructed as to its durability," or that it "was done according to the most approved plan and with the best materials," upon the ground that it was irrelevant. I think, however, that it was material upon the issue as to the safety of the building. The defendant had shown the existence of cracks, had expressed his opinion that the building was dangerous and had supplemented it by the report of the examiner, giving his opinion. The plan of construction, the method of executing it and the materials used in so doing, had a bearing upon the effect of the cracks and the question of safety. A solid, well-planned building, perfectly constructed from the best materials, would be less affected by cracks than one poorly built out of poor materials and upon a poor plan. This ruling is especially significant in view of the fact that the evidence, some of it given by the defendant's *Page 357 witnesses, strongly tended to show that the cracks were simply the result of shrinkage of the timbers caused by the use of steam heat in a new building.
The trial court declined to charge upon the request of the plaintiff that "if the premises became untenantable from causes other than those specified in chapter 345, Laws of 1860, without the fault of the landlord, the tenant is not relieved from the payment of the rent." The learned judge, in reply to the request, said: "I cannot so charge, and I decline to so charge," without giving any reason for refusing, and without declining to charge further than he had charged upon the subject. He had previously charged, in substance, that the evidence in relation to the smoke and gas was sufficient to sustain the claim of eviction, if believed by the jury. Both the charge and the refusal to charge are in conflict with what has already been said upon the subject of eviction.
For these reasons I think that the judgment should be reversed and a new trial granted, with costs to abide event.
FOLLETT, Ch. J., BRADLEY and HAIGHT, JJ., concur with BROWN, J.; PARKER and POTTER, JJ., concur with VANN, J., dissenting.
Judgment affirmed.