(dissenting). I am obliged to dissent from the conclusion reached by the majority that “a jury issue as to liability was presented.”
There is no suggestion that the landlord was under a contractual duty to defendant to repair or alter the pipe in question. Nor is it claimed that the condition which caused the infant plaintiff to be injured constituted a hidden or latent defect, the knowledge of which was solely within the landlord. Compare Conroy v. 10 Brewster Ave. Corp., 97 N. J. Super. 75 (App. Div. 1967).
*276The landlord agreed only to supply heat. Neither by reason of express agreement nor by operation of law may it be said that he reserved control of the radiator and appurtenances thereof within the tenant’s apartment.
In Harenburg v. August, 119 N. J. L. 83 (E. & A. 1937), the then highest court of the State restated the familiar principle that in the absence of a continuing nuisance, or of an express contract, the relation of landlord and tenant at common law imposed a duty upon the tenant of repairing the demised premises. More recently, in Bauer v. 141—149 Cedar Lane Holding Co., 24 N. J. 139, 145 (1957), our present Supreme Court, citing the Harenburg case with approval, restated the rule that in the absence of an agreement to do so a landlord is under no obligation to a tenant to make repairs to remedy defects in the leased premises that either existed at the beginning of the tenancy or developed thereafter.
In this case the majority places reliance, in Monohan v. Baime, 125 N. J. L. 280 (E. & A. 1940), where an employee of a tenant was injured by a falling radiator in a leased building. It may be of some interest to note that Monohan, decided only three years after Harenburg and by a substantial complement of the judges who decided Harenburg, did not even mention that case. The reason, I think, is obvious ■ — • the two cases dealt with differential factual complexes. In Monohan the lease expressly provided that the laiidlord was to keep in repair the exterior parts of the building, including the roof, conductor pipes, sidewalks, plate glass show windows and the heating giant, which latter appurtenance was italicized in the court’s opinion. Monohan went no further than to hold that there were disputed questions of fact with respect to the issue of retention of control by the landlord which required submission to the jury.
As I see it, the majority by its decision, has extended the landlord’s liability beyond the boundaries surveyed and fixed by the highest courts of this State. Whether or not its efforts in this respect are or arc not commendable in point of legal *277philosophy is not for mo to say. However, I strongly feel that this approach, intruding as it does upon the established law, has no place in the decisional processes of this intermediate appellate court.
I would therefore affirm the trial court.