—I am of the opinion that the defendant was not responsible for the injury sustained by the plaintiff.
No question is presented as to the extent of damages which the tenant, the father of the plaintiff, has himself sustained by reason of any breach of the landlord’s agree*347ment to repair; nor upon any claim as between parties standing in privity of contract, or estate, and rsepectively liable to each other; nor upon any claim that the premises, when originally rented to John Flynn, the father, were in a dangerous condition, or in any respect constituted a nuisance, public or private, which continued until the accident and occasioned the injury complained of.
The plaintiff is an infant of two or three years of age ; and John Flynn, her father, for some five or six years previous to the occurrence in question, had been a tenant, from month to month, of apartments, consisting of two rooms in the fourth story of a tenement house in the city of New York, the title to which had been'recently acquired by the defendant. Outside and across the front of these rooms there ran a piazza, appurtenant to the demised premises, access to which was obtained through a door opening directly from the family sitting room, that was used by the tenant as a' place for washing and drying clothes, and storing eatables.
It was protected by a railing, consisting of slats or rails running up and down “ about three or four feet” from the floor of the piazza to the top rail. This-railing had been for two years getting quite rotten and out of repair, “ one end was quite separated and was secured by putting a barrel there.”'
‘•It was pretty much all gone.” Both the father and mother of the plaintiff were aware of its dangerous condition. The mother says, ‘‘she had been speaking about it, and defendant said she would have the repairs done.”
On the occasion of the accident, the mother was on the piazza, hanging out clothes, when the plaintiff, whom she had left in the sitting room, without being noticed by her, came out into the piazza, leaned up against the upright railings, one of which gave way, and she fell through the opening, and was precipitated down four stories into an adjoining yard, and sustained the injuries complained of.
*348Under the facts of the case, the judgment ought not to be sustained.
First. The piazza was a portion of the premises which some six years previously had been demised to, and for all that time had been occupied by, John Flynn, the father, as tenant. It constituted no part, of the common passages or other appurtenances, or conveniences in a tenement house, over which it could be inferred or presumed the landlord retained an exclusive or general control, or over or upon which strangers or tenants in general were invited to pass.
The defect in the railing' arose from natural decay, occuring during the tenancy, and perhaps there was sufficient evidence to show that the landlord by agreement was to make such repairs as were needed to keep them in tenantable condition.
Conceding however,' such obligation rested on the defendant by virtue of the agreement for the letting of these premises, she was not, by reason thereof, responsible to the plaintiff for the inj ury she sustained. Under breach of a contract, the party in default is only liable to the party with whom or to whose benefit he has Contracted, for such damages as naturally and according to the usual course of things arise from the breach, or which may reasonably be supposed to have been within the contemplation of the parties when the contract was made, as the probable result of its breach, but not for accidental, remote or consequential causes (Sedg. on Damages, 5th ed., 78 ; Griffin agt. Culver, 16 N. Y., 489; Hamilton agt. McPherson, 28 N. Y., 72; Passenger agt. Thorburn, 34 N. Y., 634).
This distinction is well illustrated by the case of Hadley agt. Baxendale (26 Eng. Com. Law & Eq., 398, S. C., 9 Exch., 341), (the principles of which have been adopted by our courts,) where plaintiff owner of a mill, verbally contracted with the defendant, a common carrier, to carry a broken shaft of the mill to an artificer at a distance, to serve as a model for a new shaft. Defendant violated his agreement to deliver the *349broken shaft within a reasonable time, in consequence of which a delay occurred in supplying the new shaft, and plaintiff having no other, the mill necessarily remained idle,. and claim was made for the damages sustained from loss of profits incurred, from the mill standing idle for the period occasioned by the defendant’s default.
The defendant, when contracting, knew of the mill standing idle, but not that the shaft he undertook to carry was to serve as a model fqr a new one.
The court held, that damages from the latter- cause could not be recovered ; that only such were recoverable as fairly entered into the minds of the parties, as naturally arising from a breach or which might reasonably have been in their contemplation when the contract was made as the probable result of its non-performance ; that in the absence of notice "of the particular circumstances of the case, or that plaintiff did not have another shaft, or that the mill was in no other respect defective, nor delayed from any other cause, the loss of profits for the period claimed was not the proximate or necessary result of a breach óf the agreement.
In Hargous agt. Ablon, (5 Hill, 474), Judge Co wen, in illustrating this subject, says: “ Doctqr Franklin’s case of the defective horse-shoe nail, which -resulted in the loss •of the shoe, and thence in the loss of the horse, is an excellent lesson in private economy, but in an action against the farrier, it would not have done to have looked beyond-the loss of the shoe. To have charged him with accidental consequences, would have worked his ruin.” “ Besides, such a rule would have put his fortune in the power of his employer who might- be careless of consequences, or even secretly aid in promoting them.” |
So in the present case, the natural and ordinary damages ■for breach of a general agreement to keep the premisés in repair are the expenses of repair, are the expenses of. repair and the loss of the use of the premises, while the party contracting was in default or during the making of the' *350repairs and it could not have been contemplated that any special risk or accident resulting from any particular defect, or likely to occur from decay or want of repair in- any particular part of the premises, was con sidered; and least of all was it likely they anticipated or had in thought or design, that the tenant, with full knowledge of the rotten or unsafe condition of any part of the premises, would expose himself, his wife, children or servant to any danger that might be threatened, of which he had full knowledge, and might avoid; or that it was the intention of the agreement that he or any member of his family should be insured or indemnified against all possible contingencies or casualties resulting from want of perfect repair in every portion of the premises.
In Darwin agt. Potter, (5 Denio, 306), the supreme court held that the landlord who had demised farming lands with barns thereon, was not liable to his tenant on failure to fulfil mch an agreement, for injury resulting to cows or young cattle; for increase of food, they required and decrease of their product, by reason of the state of the barns in question, but only for such sum as was necessary to place the barns in the condition in which they were to be put by the agreement, with interest.
In Walker agt. Swayzee, (3 Abb., 136), decided in 1856, it was announced as a doctrine of this court that the measure of damages in an action on such a covenant was “ the amount it would cost to make such repairs; and for the reason that the tenant cannot, by exposing himself, his family or his goods to the injuries or damage which result from the landlord’s neglect, present a meritorious claim, when he could remedy the evil by repairs for which he would be fully indemnified out of the rental.”
In Beach agt. Crane, (2 Comst., 86), defendant had covenanted to erect and maintain a gate, between the public highway and plaintiff’s land across, or over a private road granted him, and for default he was held liable for actual *351injury occasioned by cattle coming on to the land, in consequence of the removal of the gate.
Here the erection .and maintenance of .the gate was specially contracted for, and its sole object was the protection of the land from such inroads of stray cattle from the highway, the damages were properly held to result as a direct consequence of the breach.
In Myers agt. Beach, (39 N. Y., 269), the tenant was held entitled to recover, on such a covenant, the-damages he had sustained from loss of the use of rooms in a hotel, caused by a defect in the flues of the chimney, while the landlord was in default; that the -right to damages was not confined to the mere cost of the repairs, but that those resulting from the loss of use of the rooms, after the landlord had been notified of the necessity of repairs, were both certain and proximate.
In Doupe agt. Genin, (45 N. Y., 119), the court of appeals held that in respect to the obligations to make repairs, there was no distinction in the respective duties of landlord and tenant of parts of tenement houses, from those imposed by law upon parties occupying the same relation as to entire premises or parcels of land.
From these authorities it is clear, that the mere agreement of the landlord to repair, has reference only to the condition of the building or 'premises demised, for the purpose of their profitable use; and the pecuniary benefit to be derived from their enjoyment; or loss from being deprived of their use in such state of repair as the agreement intended.
Such a simple agreement or contract in no way contemplates any destruction of life or casualties to the person or property of any one, which might accidentally result from an omission to fulfil the agreement in every respect.
The only case referred to, as arising upon such an obligation and supposed to maintain a contrary doctrine, is that of Johnson agt. Dixon, (1 Daly, 178), decided in 1861,; by a divided court without allusion to the principles previously announced in Walker agt. Sway zee, (5 Abb., 136).
*352The majority of the court there held the owner of a stable, who had leased to the plaintiff the use of a horse-stall, was liable to his tenant for injury to a horse, resulting' from neglect to repair the floor of the stable after notice of its defective condition..
The decision is not based upon any mere breach of agreement to repair, but as stated in the prevailing opinion, upon the “ wrongful act or default of the landlord himself resulting from- his promise, when informed of the fact, ‘ to attend to it’ and thereby preventing the horse from being withdrawn and the accident prevented.”
It is assumed in the case that the repairs “ were necessary to be done, to make the stable secure and safe for the purpose for which it wás used, and that as matter of fact, the (such) “ obligation rested on the defendant to do it.” If any such agreement, as is last above stated, existed, within the principles of the-cases above cited, it warranted the judgment, as it was made with special reference to maintaining the stall in -a secure and safe condition, for the horse to occupy it, and, no contributive negligence on the part of the plaintiff being shown, the recovery of damages resulting from a breach of a stipulation, having reference to the safety of the horse occupying the stall, was properly sustained.
This decision, on such facts, does not in any way impair or affect the law as previously announced in Walker agt. Swayzee.
There are some cases in which additional damages, besides those allowed for breach of contract on the principles above stated, have been awarded, upon the ground of its.fraudulent violation (See Dewitt agt. Wiltze, 9 Wend., 325; as explained by Judge Cowen, in Blanchard agt. Ely, 21 Wend., 350); Sedg. on Dam., 5th Ed., 223, note i). Little progress has, however been made in the introduction of this element as ground for awarding additional damages for non-performance of a contract, as against the well established and certain. rule for their assessment predicated upon' the immediate *353pecuniary profit or advantage that would have resulted to the party contracted with, if fulfiled according to its legal force and effect (Sedg. on Dam., 203, 208, marg.) But for the proposition that a landlord under contract (generally) to keep the premises in repair is for breach, also further liable to his tenant as in tort for wilful refusal or neglect to perform his obligation. No warrant is to be found in principle or authority. His subsequent parol promise, after being notified of defects, to make the necessary repairs, unless founded on a new consideration, superadds nothing to his original obligation (Doupe. agt. Genin, 37 How., 5), and furnishes ho ground for awarding additional damages except so far as the tenant (the landlord not having actually commenced to make the repairs) is by such promise delayed and hindered, in making them (primarily) at his own expense.* (Turner agt. McCarthy, 4 E. D. Smith, 547).
If the responsibility of the defendant, for the injury sustained by the plaintiff, is to be maintained, through force of *354subrogation to the benefits of her personal obligation to her tenant to make repairs, there is no foundation for this claim; since the general covenant or agreement to repair had no reference to such an accident. Neither the case stated in the complaint, nor that made by the proof, is based'upou any such obligation by way of contract, and the defendant must be held liable, if at all, in tort (as claimed in the complaint) upon some legal obligation or duty to the plaintiff outside of any such agreement. If the plaintiff, a stranger to the landlord’s agreement to repair, can avail herself of its obligation (to which I ■ do not assent) her rights under it cannot extend beyond those which it légally assured to the tenant; and as none would have been awarded to him, had he been the sufferer, in this case none can accrue to the plaintiff, claiming through or under- him.
Secondly. There is no evidence that the railing of the piazza, when the premises were leased to John Flynn (the father) was in a dangerous condition or threatened any injury to any one.
Its deterioration or dilapidation (so far as appears) arose several years after the letting, and from natural causes or through defects thereafter occurring from natural wear and decay. « ’•
. A claim cannot exist on the part on behalf of sufferers from such causes, in an action for tort or negligence against one whose only obligation exists in contract with the tenant in possession, and one can only be founded pn. some other negligence, trespass or wilful breach of a direct public or private duty to the party inj ured.
In the present case, the defendant bad no relations with the plaintiff, either by contract, or public or private obligation in reference to this balcony or piazza, and owed no duty to her to keep and maintain its railing in a safe condition (O'Brien agt. Capwell, 59 Barb. 504).
But, Thirdly. Even it any obligation existed on the part - of the defendant as landlady, growing out of her duty sic *355utere tuo ut alienum non leedas, the case presented, is not one authorizing this recovery.
The negligence of the parents, in suffering the plaintiff toj, wander upon this balcony, and exposing her to the danger| which they had for two years known and apprehended, wasj so gross and unambiguous, as to constitute contributive neg-' ligence, and should have prevented any recovery.
There was no contradiction or qualification to the force of the statements of plaintiff’s parents and witnesses on her behalf, of their knowledge of the precarious condition of the balcony, or of their full apprehension of the hazard, to which any one was exposed by coming out upon it.
Where danger of injury being inflicted is to be apprehended and conseqences to result from the act or default of a party is likely to be serious, the highest degree of precaution and vigilance must be exercised (Kelsey agt. Barney, 12 N. Y.425), and if through neglect of this duty, which the law imposes on the party injured, of making reasonable exertions to render the injury as light as possible, the damages are unnecessarily enlarged, the increased loss falls on him (Hamilton agt. McPherson, 28 N.Y., 72).
Possessing, as the parents of this child did, knowledge of the dangerous condition of this piazza, they do not appear to have taken any, or the slightest, precaution to keep it away from the danger, or to protect it from the known risk of playing or interfering with these insecure railings; but through forgetfulness or inattention of the mother it was allowed to stroll out, and expose itself to the apprehended calamity, and it suffered such consequences as might reasonably have been expected. To permit this child of two or three years of age to unconsciously rush into such a hazard, constituted gross negligence ; as much so, as if it had been suffered to remain unattended, .at an open window, which the landlord had neglected to supply with window sash, or other guards against it falling out of it.
The undisputed facts constitute a clear cause of contrib*356utory negligence on the part of the parents, in charge of a child too young to exercise discretion to avoid such a danger.
The rights of recovery of a child are controlled by the neglect of its parents, to the same extent as if it were capable of governing its own conduct, and had been equally neglectful (Sher. & Red. on Negligence, §§ 66, 37, 48; Honegsberger agt. Second Av. R.R. Co., in court of appeals 33 How., 193, overruling S. C., 1 Daly,, 89).
The injury arose from no. culpable or aggressive act of the defendant, but could at most be claimed to have happened (remotely) through her breach of contract with another.
Under these circumstances the motion to dismiss the com plaint should have been granted; and as well on that account, as for the absence of any legal responsibility on the part of the defendant for the matters complained of, the judgment should be reversed. '
I concur, R. L. Labbemobe,
Daly, Ch. J., dissenting.
VBat it is presumed that this case was decided (and perhaps properly so) on the ground of contributive negligence on the part of the plaintiff*.—Rep.Note. It would seem that notice of the breach of the contract to repair and the dangerous condition of the premises would be a sufficient consideration for the parol promise to repair the dilapidated premises ; and that the landlord’s neglect to fulfil his promise and make such repairs after such notice, constituted gross negligence. The tenant, it is true, might, on giving the landlord proper notice to repair in a specified time, make the repairs at his own expense and deduct it from the amount of the rent, but he was not obliged to do so, and it-ia always a hazardous business for the tenant, at best.
It is said that the promise of the landlord to repair, after notice from the tenant, of the defects superadds nothing to his original, obligation; it may be that it adds nothing to the original covenant to repair, but the non-fulfillment of the promise adds the very important element of negligence to the landlord's liability.
It is also said that a claim cannot exist on the part and behalf of sufferers from such dilapidated premises, in an action for tort or negligence, against one whose only obligation exists in contract with the tenant in possession; this may be true, but when, as in this case, there is added to such obligatory contract, negligence, upon which the action is founded, it creates an additional obligation.
If it is intended to be held that in no event can negligence be predicated of a promise of the landlord to repair, then there ought to have been a nonsuit iu this case, as the action was wrongly brought for negligence. If the action is properly brought, founded on negligence, there would seem to be no difficulty in recovering damages, remote and consequential as well as immediate and proximate.
Bat it is presumed that this case was decided (and perhaps properly so) on the ground of contributive negligence on the part of the plaintiff*.—Rep.