
    James Wallace v. Whitman S. Lent.
    Ho contract is implied that a house is fit for habitation, as the tenant can examine it, and the landlord may know no more respecting it than it is in the power of the tenant to discover for himself. But where the landlord knows that a cause exists which renders the house unfit for occupation, it is a wrongful act on his part to rent it without notice of its condition, and where the tenant, after discovering the condition of the house, quits it, the landlord should not be permitted to take advantage of his own wrong and enforce the contract for the payment of'the rent.
    A landlord rented'a dwelling house to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house, proceeding fronvsome unknown cause, which rendered it unfit for habitation. The tenant, ignorant of the circumstances, went into possession with his family, and in a very short time all the inmates of the house experienced the injurious effects of the stench, producing vomiting, &c. The tenant attempted to abate the nuisance, but without effect; and after a month's occupotion, on the advice of his family physician, quit, the premises,—EM, that the concealment was a fraud on the part of tire landlord, and that the tenant was justified in leaving.
    Even where fraud has been practiced, a tenant, if lie continues to occupy the premises, must pay rent therefor, but after the discovery of the fraud, he is entitled to a reasonable time within which to repudiate the contract.
    Thus where the tenant continued in occupation about a month, hut did so under tlie assurance of the landlord that the cause of the complaint should be removed,—EM, that his continuance during that period was not of such a nature as to amount to an adoption of the contract, or to make the tenant liable for the payment of the rent for the period while in ac'tual occupation.
    Appeal by the defendant from a judgment of the Sixth District Court.
    The action was brought to recover for two months’ rent of certain premises in the City of New York, due on the first, days of May, and June, 1863. The defence was that at the rime of the hiring of the premises the plaintiff fraudulently concealed' from the defendant the existence of a deleterious stench in the-house, proceeding from some unknown cause, and rendering it dangerous to health to remain in the house. It was shown on the trial that this nuisance was well known to the plaintiff’s agent, who rented the house; that the previous tenant had complained of it, and that the plaintiff had, in consequence, made application to the Health Warden. The defendant, after occupying the premises a part of two months, abandoned them, on the advice of his family physician that the health of himself and family was thereby jeopardized.
    The Court below rendered judgment for the rent of the two months during which the defendant occupied, and the latter appealed to the Court of Common Pleas.
    
      Roscoe H. Charming, for appellant.
    
      Flanagan & Cummings, for respondent.
   By the Court.

Daly, F. J.

This was the case of a landlord’s agent renting a dwelling house in the City of New York to a tenant without disclosing the fact, of which he was aware, that there was a deleterious stench in the house proceeding from some unknown cause, which rendered it unfit for liabitatian. The tenant, ignorant of the circumstances., went into possession with his family, and in a very short time all the inmates of the house experienced the injurious effects of the stench. It was not merely offensive to the senses, but it .produced sickness at the stomach, vomiting, loss of appetite, &c. Tire tenant did everything in his power to abate the nuisance, but without effect, and after continuing in the house for about a month, and after several consultations with the family physician, who was of opinion that the family could not live in the house without all becoming sick, he left it. The plaintiff has recovered in the Court below for two months’ rent, and I think erroneously. ;

It was held in Sutton v. Temple, 12 Mees. & W., 52 ; and in Hart v. Winslow, id., 68; overruling the previous cases of Collins v. Barrow, 1 M. & Rob., 112; and Salsbury v. Marshall, 5 C. & P., 65 ; that there is no implied condition in an agreement for the hiring of a house thht it is reasonably fit for habitation; and it was held in Westlake v. DeGraw, 25 Wend., 669, that it was no answer to an action for the rent that the tenant left the premises in consequence of a noxious, unhealthy smell, arising from dead rats under the steps of the house, inasmnch as by the exercise of ordinary vigilance he could have ascertained, as the tenant who succeeded»him did, the cause of the smell, and might have removed it.

The present case, however, is distinguished from either of the preceding ones in several particulars. The landlord’s agent admitted that he knew before he rented the premises to the defendant, that there was an offensive stench in the house, the cause of which had not been discovered, hut which he supposed arose from a sewer that was under .the house. It was, in the language of the physician, a dense bad smell, as if it came from a vault, and that it was highly injurious to health appears in the fact that when the inmates of the house arose every morning, they had sickness at the stomach accompanied with a foul tongue and loss of appetite, and some of them were taken with vomiting. The previous tenant had left the premises before the expiration of his term, and the agent, after several attempts to evade the inquiry, admitted that this tenant may have said to him that he left the house in consequence of the smell. He also admitted that the complaints had been previously made respecting the stench, and that in consequence of them he had made an application to the Health Warden.

To let the house to the defendant, concealing so material a matter as this, was a fraud. It was something which the defendant could not have anticipated, and of which he had a right to be advised, as it affected the beneficial enjoyment of the premises. The agent knew that the house was not fit for habitation, but the tenant did not, nor could he have discovered the cause which made it so by any ordinary examination of the premises. Ho contract is implied that a house is fit for habitation, for-the reason that the tenant may examine it, and "the landlord may know no more respecting it than it is in the power of the tenant to discover for himself. But where the landlord knows that a cause exists which renders the house unfit for habitation, it is a wrongful act on his part to rent it without notice of its condition." It is procuring an innocent tenant to enter into a contract for the payment of rent during a specified period for the occupation of a house-which"the -landlord knows that the tenant will either have tr> abandon, or if he remains in it must do so to the detriment of the health of himself and his family. If the defendant had been advised of the existence of this stench, it may fairly be presumed that he would either have declined to rent the house, or that he would have made some conditions entitling him to leave if he found it unendurable, and if after discovering and experiencing its injurious effects, he is compelled to quit the house, it would be permitting the landlord to take advantage of his own wrong, to allow him to enforce the contract for the payment of the rent. In Sutton v. Temple, the Court adverted to the circumstance that it wife not suggested that the plaintiff had the least knowledge when she let the premises of the existence of the poisonous substance upon the land, which proved injurious to the plaintiff’s cattle; and in Westlake v.De Graw, the verdict of the jury was regarded as having negatived any presumption of fraud; but. in the present casa it was abundantly shown, even by the agent’s admission, that he knew of the existence of the stench, and it was by the unconscientions withholding of the material fact, that the defendant was entrapped into a contract to pay rent for a house for a year which he could not occupy.

Even where fraud has been practiced, a tenant, if lie continues to occupy the house, must pay rent for it, but after the discovery of the fraud he is entitled to a reasonable time within which to repudiate the contract. In this case, the defendant continued in occupation about a month, but lie did so under the assurance of the agent that the cause of the complaint would be removed. An attempt was made, but it was not removed, and the defendant left about the second of June, by the advice of bis physician. His continuance therefore during the period was not of such a nature as to amount to an adoption of the contract, or to make him liable for the payment of rent for the period which he actually occupied.

The judgment should he reversed.  