London Terrace, Inc., a New York corporation, owner of a large apartment building located in the Borough of Manhattan, New York City, sued Raymond W. McAlister to recover balance claimed to be due on a lease contract. Plaintiff appealed from an adverse judgment based upon findings of a jury. The material facts are these: Plaintiff leased to the defendant an apartment for the period of two years; *Page 516 defendant paid rent for 15 months, but refused to make further payments and abandoned the premises, claiming that plaintiff breached its obligation to keep the apartment sufficiently and comfortably heated as the weather conditions required.
Defendant specially plead that before signing the lease contract, plaintiff, through an authorized agent, "represented and covenanted with defendant that the premises leased would always have steam heat available"; that when the previously prepared lease contract was presented for execution, defendant said he would obtain the advice of his attorney before signing, but being assured by plaintiff's representative that the written contract contained nothing in derogation of the verbal representations and obligations, defendant signed without reading; that the verbal representations were fraudulently made, without any intention on the part of plaintiff to comply with same, they were fraudulently omitted from the written contract, and that plaintiff failed to comply with its verbal covenant to properly heat the premises. Defendant plead and rested his defense exclusively on the issue of fraud as above set out, and the case was submitted by the court to the jury on that theory, which, for reasons hereinafter stated, we have concluded was error, and under our view of the case it will not be necessary to determine whether or not defendant was negligent in not reading the contract before signing.
As heretofore shown, the allegedly fraudulent verbal representation that induced defendant to execute the contract was, "that the premises leased would always have steam heat available." In support of this allegation, defendant said plaintiff was not to furnish heat during the summer months, but that "they said within reason they would keep the heat on during the cold months and any time we had a cool day they would send up heat." It was for the alleged violation of this verbal representation or obligation on the part of the landlord to furnish heat as weather conditions required, that the defendant insisted constituted legal justification for his abandonment of the premises and refusal to pay further rents.
The pivotal question presented, in our opinion, is fundamental and is this: Was the verbal obligation of the landlord to keep the premises properly heated as the weather conditions required in any legal sense different from its obligation to furnish heat under the terms of the written contract? If no difference existed, that is, if the defendant would be entitled to urge same defense to the action and obtain same relief for breach by the landlord of its obligation to furnish heat, contained in the written contract, as he would for breach of the alleged verbal obligation, it follows, we think inescapably, there being no difference in a legal sense, fraud could not exist. The obligation of the landlord in regard to heating service, contained in the written contract, reads: "As long as Tenant is not in default under any of the provisions of this lease Landlord covenants to furnish, insofar as the existing facilities provide, the following services: (a) * * * (b) * * * (c) Heat at reasonable hours during the cold seasons of the year." Although differently phrased, we think the legal effect of the alleged verbal obligation of the landlord to furnish heat to the apartment and the corresponding obligation contained in the written contract, is the same, and that the defendant could obtain same relief for breach of one just as for breach of the other, and on the same evidence; this being true, the representation alleged and testified to by defendant to the effect that plaintiff's agent said the written contract contained nothing in derogation of the verbal representations made, in a legal sense was true.
The evidence, in our opinion, was sufficient to have sustained findings by the jury and judgment based thereon, to the effect that plaintiff failed adequately to heat the apartment within the meaning of the heating service provision of the written contract, but the defendant did not allege its breach; he relied exclusively upon allegations of fraud, which, for the reasons stated, we do not think was shown. It takes more than sufficient evidence to sustain a judgment, as it must be bottomed on proper pleadings as well (Rule 301, Vernon's Texas R.C.P., p. 308). For reasons heretofore stated, we think the judgment should be reversed and the cause remanded without prejudice to the right of the defendant to amend and allege breach of the heating provision of the written contract, and proceed in harmony with the views here expressed.
In view of the disposition made of the case, we will discuss and state our views on a question that doubtless will arise on another trial. The heating provision of the written contract, in its entirety, *Page 517 reads as follows: "As long as Tenant is not in default under any of the provisions of this lease Landlord covenants to furnish, insofar as the existing facilities provide, the following services: (a) * * * (b) * * * (c) Heat at reasonable hours during the cold seasons of the year. Interruption or curtailment of any such services shall not constitute a constructive or partial eviction nor, unless caused by the gross negligence of Landlord, entitle Tenant to any compensation or abatement of rent. * * *" In providing that "Interruption or curtailment of any such services shall not constitute a constructive or partial eviction nor, unless caused by the gross negligence of the Landlord, entitle Tenant to any compensation or abatement of rent," we think it obvious that the landlord sought to relieve itself of the duty to exercise ordinary care to heat the apartment, and from the consequences of its failure to exercise such care. Such provision, in our opinion, being against the declared public policy of this state, is void. In the case of Galveston, H. S. A. Ry. Co. v. Pigott, 54 Tex. Civ. App. 367,116 S.W. 841-848, writ refused, the court said: "Cooley on Torts ([3d Ed.] p. 1485), after mentioning carriers and telegraph companies as among those who cannot relieve themselves from liability from their own negligence, says: `The cases of carriers and telegraph companies have been specifically mentioned because it is chiefly in these cases that such contracts are met with but, although the reasons which forbid such contracts have special force in the business of carrying persons and goods, and of sending messages, they apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the mercy of his own faulty conduct.'" Also see 10 T.J. § 130, pp. 220-221.
The public policy of a state is a law of the state and, nothing appearing to the contrary, the presumption will be indulged that the law of the State of New York on the subject is the same as in this state. See 17 T.J. § 84, pp. 297-300. However, if it should appear that the law of the State of New York is otherwise, yet the doctrine of comity would not require the courts of this state to enforce a foreign law or give effect to rights arising thereunder, if to do so would contravene the public policy of this state, or work an injustice to a citizen thereof. See 9 T.J. § 4, pp. 356-357. So, we conclude that the provisions of the written lease contract that attempt to relieve the landlord of the consequences of its failure to exercise ordinary care is void and cannot be enforced in this state.
For reasons above stated, the judgment of the court below is reversed and the cause remanded for further proceedings in harmony with this opinion.
Reversed and remanded.
BOND, C. J., concurs in part, dissents in part.