
    Louis Eisen and Henry Eisen, Copartners Doing Business under the Firm Name of Eisen & Son, Respondents, v. Charles A. Baudouine and John F. Baudouine, as Trustees of the Estate of Charles A. Baudouine, Deceased, Appellants.
    First Department,
    November 5, 1915.
    Landlord and tenant — injury by leaking roof — lease requiring written notice to landlord ■— evidence of verbal notice by another tenant — waiver of written notice.
    Where a lease provided that the landlord shall not be liable for damages from a leaky roof, unless it shall fail to repair the roof within a reasonable time after a written notice, the tenants of the next to the top floor who have given no notice to the landlord, cannot establish a cause of action for damages caused by a leaky roof, by proof that on various dates, all more than four months before the date on which the alleged leakage occurred, the tenant of the upper floor gave verbal notice that the roof leaked, and that in each case the landlord’s agent caused the roof to be repaired, especially where no complaint is made and it does not appear that any leak developed during the said four months.
    The fact that the landlord had responded to oral complaints by another tenant did not constitute a waiver of written notice from the plaintiff.
    Appeal by the defendants, Charles A. Baudouine and another, as trustees, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of‘New York on the 5tli day of May, 1915, affirming a judgment and order of the City Court of the City of New York in plaintiffs’ favor.
    
      John A. Garver [Chauncey B. Garver, of counsel, with him on the brief], for the appellants.
    
      I. Gainsburg, for the respondents.
   Scott, J.:

Plaintiffs were tenants of the next to the top loft of a building owned by defendants. One Wolf son occupied the top floor. The action is for damages caused to plaintiffs’ stock in consequence of a leaky roof.

The lease to plaintiffs contained the following clause:

“Fifth. That they will not hold the Lessors liable for any damages to property caused by a leakage of or defects in the roof, or such other part of the interior or exterior of said building, as may remain under the control of the Lessors, nor for any damages resulting from the acts or omissions of other occupants of the building, or other cause.. Whenever there shall be a leakage of the roof, the Lessee shall notify the Lessors in writing, and the Lessors shall not be liable for any damages unless they shall fail to repair the roof within a reasonable time after such written notice is delivered to them.”

The leakage occurred July 5, 1913.- No written or other notice was shown to have been given by plaintiffs to defendants.

The court allowed proof that on various dates between August, 1912, and March, 1913, Wolf son, the tenant of the upper floor, had given verbal notice that the roof leaked, and it was shown that in each case defendants’ agent sent roofers to repair the damage.

No complaint was made for the four months from March to July, nor did it appear that any leak developed during that time.

The court admitted these verbal notices as evidence that the defendants knew or should have known that the roof was in a leaky condition, and held that the requirement for written notice had no effect when the landlord had notice.

The case, I think, is settled by our decision in Pratt, Hurst & Co., Ltd., v. Tailer (135 App. Div. 1).

In that case there was a similar clause in the lease, but on a former appeal the Court of Appeals had held that the clause would not protect the landlord if the leak had been caused by his act in permitting a third party to use the roof for purposes to which it was not adapted, thus rendering it leaky and unsafe to the knowledge of the landlord. (186 N. Y. 417.)

On the trial leading to the appeal to this court it appeared that the decision of the Court of Appeals had been pushed too far.

In the course of the opinion McLaughlin, J., said: “ In this connection it seems to me the court erred in charging the jury that the plaintiff was entitled to recover if they found that this roof was in bad condition and that fact was known to these defendants, or by the exercise of ordinary care could have been readily ascertained. As a general proposition this would be correct, but when applied to the clause of the lease requiring notice to be given it is not correct.”

Nor do I think that notice of a leak in March imputes knowledge of á leaky condition in July unless it had been made to appear (as it was not) that the roof had been neglected meanwhile.

The complaint alleged a waiver of notice, based apparently upon the proposition that defendants had .responded to oral complaints by another tenant. This constituted no waiver so far as plaintiffs were concerned. The determination appealed from and the judgment of the City Court must be reversed and the complaint dismissed, with costs and disbursements to the appellants in this court and the courts below.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Determination reversed, with costs in this court and in the Appellate Term, and judgment ordered dismissing complaint, with costs.  