Kushes v. Ginsberg

Hatch, J. (dissenting):

I am unable to concur in the opinion written by Hr. Justice Ingraham in this case. It may be conceded that the agreement upon the part of the landlord to keep demised premises in repair is contractual in its nature and does not contemplate damages arising therefrom, based upon negligence in failing to fulfill the covenant. Such is the general rule (Golob v. Pasinsky,72 App. Div. 176; S. C., 178 N. Y. 458; Frank v. Mandel, 76 App. Div. 413.) In Wynne v. Haight (27 App. Div. 7) it was said that a case might be removed from the operation of this rule if the injury resulted not in consequence of a breach of the covenant to repair, but proceeded from some affirmative and direct act constituting negligence, and the act was the proximate cause of the injury. Under such a ease an *421action for negligence may be maintained. The averment contained in this complaint seems to be sufficient to bring the case within the operation of this rule. In substance that averment is that the defendant knew the character of the material used in the plastering and that by reason of the character of such material it would not fall. This was the representation of a material fact of such a character that the plaintiff had the right to rely thereon. It was followed by an averment that the matter was false in fact, that it was relied upon by the plaintiff, that he acted thereunder and was induced thereby to remain in the possession of the premises and therefrom sustained the injury of which complaint is made. This is a good averment of fraudulent representations which gives a right of action for injury arising therefrom.

It is said, however, that there is no averment of scienter and that the pleading is bad for that reason. In making the representation the defendant according to the allegation assumed to know as matter of fact the material of which the ceiling was composed and to represent as a fact that it was perfectly safe and could not fall. Under such circumstances, whether he had actual knowledge of the nature of the material or that it would not fall, is not of consequence. As the representation was positive if he made it with knowledge that it was untrue, intending to deceive, or made it without any knowledge upon the subject, it could make no difference, as in either event he would be liable as for a false representation. (Kountze v. Kennedy, 147 N. Y. 124; Hadcock v. Osmer, 153 id. 604.) It is clear from the averment that the defendant represented facts as of his knowledge, and the averments which follow, that they were false, were acted upon and that the plaintiff suffered damage thereby, make out the statement of a cause of action for fraud, and this is sufficient.

It is true that the tenant had the right upon the defendant’s breach of his covenant to repair the premises himself, and recover the value thereof or recoup it in an action for rent, and if the premises were in fact dangerous, as they were, the failure to repair would authorize their abandonment by the tenant. By reason of the representations which are alleged to have been made, the plaintiff was induced to remain in the continued occupancy of the same in reliance thereon. Under such circumstances it would seem that the *422averment was sufficient to show that the injury proceeded from the false representation made by the defendant. The action, therefore, is not founded upon the breach of the covenant to repair, but upon the affirmative representation of an existing condition which was false, but upon which the plaintiff was authorized to rely. The injury was received as the direct result of the defendant’s representation and this gave rise to a cause of action in his favor. It is not of consequence what name be applied to such a cause of action, whether it be negligence or otherwise tortious, or founded in fraud. It is sufficient if from all the averments facts are stated giving rise to a cause of action. I think the complaint sufficient for such purpose.

The interlocutory judgment should, therefore, be reversed, with costs, and the defendant be allowed to plead over upon the payment of costs in this court and in the court below.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs, with leave to the plaintiff to amend on payment of costs in this court and in the court below.