
    JACOB STAPENHORST et al., Plaintiffs and Respondents, v. THE AMERICAN MANUFACTURING COMPANY, Defendant and Appellant.
    1. Occupants op a House.—Relative Rights, Duties, and Liabilities.
    1. Maxim—Bic utere tuo ut aiienvm non laedas.
    
    
      a. One occupying an upper story must use in the conduct of his business therein such care, caution, attention, and discretion as an ordinary prudent man would put forth to prevent injury being sustained by the occupant below.
    5. The occupant below is bound to use similar diligence to guard against injury.
    1. Consequently, if the occupant below uses the proper degree of diligence, but the occupant above does not exercise the proper care, and injury thereby results to the occupant below, a cause of action for such injury accrues to the occupant below against the occupant above by reason of his negligent omission.
    1. This, although there was no positive intention on the part of the occupant above to injure the occupant below.
    
      a. Consequently, when the defendant occupied the upper stories of a building for the purpose of a manuf acturing business in which oil was used, and the floor immediately below was occupied by a machinist, and the floor below that was occupied by plaintiffs, who were defendant’s lessees, for the purpose of manufacturing mustard, and the defendant negligently permitted oil to leak through the floor and drip on iron stored in the floor below, whence it, impregnated with iron filings or particles of iron finely pulverized, dripped into plaintiff’s floor, and so damaged the mustard in iirocess of manufacture by plaintiff as to render it useless.
    " Held,
    THAT DEFENDANT "WAS LIABLE.
    1. Landlord and tenant. This relation is hut one, and a comparatively unimportant circumstance in determining the question of negligence under such circumstances, and such a case cannot he disposed of on the simple theory that as between landlord and tenant, the landlord is not hound to repair without express covenant.
    H. Damages.—Injury to Business.
    1. Evidence, what not admissible.
    
    
      a. Proof that during the period in the year preceding the one in which the damage was sustained, corresponding to the period during which the damage was sustained, the plaintiffs had a certain number of customers from whom they realized a profit of not less than a certain sum per 'month, and which subsequently were all lost, is inadmissible,
    
    1. Where the complaint contains neither the names of the customers so lost, nor an averment of loss of customers as an item of special damage in general terms.
    3. When the action is based on a negligent omission, such proof is inadmissible, as too remote.
    
    
      b. Admission of such Evidence, when material Error.
    1. It is material when the judge charges the jury that in the event of their finding certain facts, they should find from the evidence, in addition to other things, what dmnage was done to the business.
    
    3. Measwre of, in an action based on a negligent omission.
    
    1. Only such damages as spring naturally from the negligent omission, unaffected by extraneous causes, can be recovered.
    III. Pleading. —Complaint.
    1. Averment in, in actions based on negligence, what requisite to permit the introduction of proof as to damage to business,
    
    
      a. An averment giving the names of the customers whose business has been lost, or at least an averment of the loss of customers %s an. item of special damage in general terms.
    
      Before Barbour, Ch. J., Monell and Freedman, JJ.
    
      Decided November 29, 1873.
    Appeal from judgment entered upon the verdict of a jury in favor of the plaintiffs for $1,759.59.
    The facts sufficiently appear in the opinion.
    
      Arnoux, Ritch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel for appellant, urged :
    I. The doctrine of caveat emptor demands that a tenant hiring a portion of a manufacturing establishment shall, at his peril, ascertain the established method of using the building and the physical conditions resulting therefrom, to the same extent that it does in respect to the permitted and unarfested action of the elements upon the premises and the injuries that may result therefrom.
    1st. Under a contract for hiring, there is no implied covenant that the premises are tenantable, the common law imposing upon the tenant the duty of ascertaining that the same are suitable for his occupation and use (O’Brien v. Capwell, 59 Barb. 497; Cleves v. Willoughby, 7 Hill, 83; McGlashan v. Tallmadge, 37 Barb. 313; Howard v. Doolittle, 3 Duer, 464; Izon v. Groton, 5 Bing., N. C. 501; Arden v. Pullen, 10 M. & W. 321; Anwortk v. Johnson, 5 C. & P. 239 ; Torriana v. Young, 6 C. & P. 8; N. Y. Civil Code, § 990 and note).
    2d. If this proposition were not true, then the converse must be true, for there is no middle course, that the rule in letting is caveat venditor. This would make the landlord a warrantor and insurer of the premises, and the statement of it bears its own refutation.
    The true rule is thus laid down in a case in our own State:
    “A man may make a proper use of his own, and others must take notice of his right to do so ” (Hay v. Cohoes Co., 3 Barb. 50).
    
      And the only exception that there seems to be to the rule is the case of a furnished house or furnished apartments (Smith v. Marrable, 11 M. & W. 5).
    This exception seems to be based upon the doctrine of latent defects, according to the argument of counsel and the observations of one of the barons in a later case (Sutton v. Temple, 12 M. & W. 52).
    
    
      3d. The court, in charging the jury, declared that the defendants’ liability for the oil was the same as if the landlord suffered the roof to leak, and the water, percolating downward, carried with it the iron complained of to the plaintiff’s damage. To this proposition we assent, but say that in neither case could the landlord be held liable.
    Nor is there any distinction in principle or in decisions between effects resulting from natural causes or those produced by artificial causes (Westlake v. De Graw, 25 Wend. 669 ; Sutton v. Temple, 12 M. & W. 52; Foster v. Peyser, 63 Mass. 242; Dutton v. Grerrish, 63 Mass. 89 ; Welles v. Castles, 3 Gray, 324).
    The doctrine of contributive negligence, which is in this case synonymous with caveat erwptor, is equally fatal to the plaintiff’s claim.
    That the party injured must not, by his own negligence, have contributed to the injury, must be considered a legal postulate (Johnson v. Hudson River R. R. 20 N. Y. 69).
    II. As, according to plaintiffs’ testimony, the iron was the sole cause of the injury complained of, and the defendants had established the use of the building prior to the tenancy of First & Pryibil, who, with full knowledge of the dripping of the oil, so placed, their iron that thereby alone the iron particles were conveyed into plaintiff’s mills, the defendants were the remote and not the proximate cause of the damage, and consequently was not liable therefor.
    1st. The cases all agree in this proposition, that negligence must Tbe proximate and not remote (Austin v. New Jersey Stbt. Co., 43 N. Y. 82).
    2d. An injury is considered immediate when the act complained of itself, and not merely the consequences of that act, occasions the injury (1 Chitty's Pleading, 117; Approved Scott v. Bay, 3 Maryland, 443 ; Panton v. Norton, 18 Hill, 500; Ryan v. N. Y. O. R. R., 35 N. Y. 210; Webb v. Rome W. & O. R. R. 49 N. Y. 420).
    III. Under any circumstances the judgment should be reversed for the erroneous instruction given to the jury by the court, that they might give to plaintiff compensation for damage done to the good-will of plaintiff’ s business.
    1st. The Court of Appeals in this State have of late held that there are no degrees in neglignce in harmony with English and national decisions (Filer v. N. Y. C. R. R. 49 N. Y. 47, 51; Perkins v. Do., 24 N. Y. 196, 206; Wells v. Do. 24 N. Y 181; Smith v. Do., 24 N. Y. 222, 241; Hinton v. Dibbin, 2 Q. B. 646, 661; Grill v. Iron Screw C. Co. L. R., 1 C. P. 600; Wilson v. Brett, 11 M. & W. 113; New World v. King, 19 How. U. S. 474; 14 U. S. 483.
    Recently the judges of several English courts have expressed their disapprobation of attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them (Wylde v. Pickford, 8 Meeson c§ West, 443, 461, 462; Hinton v. Dibbon, 22 B. 646, 651). It must be confessed that the difficulty in defining gross negligence, which is apparent in such cases as Tracy v. Wood (3 Mason, 132), Foster v. Essex Bank (17 Mass. 479), would be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman Law and on the Civil Code of France have wholly re-' pudiated this theory of three degrees of diligence as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties (Toulliers Droit Civil, Vol. 6, p. 239, 11 Vol. p. 203; Makeldey Man. Du Droit Domain, 191).
    In Hurton v. Dibbin, Lord Denman said: “It may well be doubted whether between gross negligence or negligence merely any intelligible distinction exists.”
    Under these decisions, the Court erred in charging the jury that great and continuous negligence was equivalent to gross negligence.
    2d. If there were such negligence, it did not alter the rule xof damages, and damage to the good-will is too remote to be considered.
    Thus, where an act caused such injury that plaintiffs were forced "to make an assignment, it was held that' that was not the legitimate consequence of such act (Donnell v. Jones, 13 Ala. 490).
    Where a telegraph company neglected to send a despatch, commissions on sales that would otherwise have been effected, were1 held to be too remote damages (Landsberger v. Telegraph Co., 32 Barb. 530).
    Where customers refused to purchase anything from plaintiffs’ establishment, in consequence of the bad repute caused by defendants having sold plaintiffs diseased meat, held that such loss was not the legal and natural consequences of the act (Crain v. Petrie, 6 Hill, 522.)
    IY.—1st. The evidence was improperly admitted respecting the leaking of oil of vitriol the year previous to this alleged leakage of oil, and of the leaking of water during that year.
    Its direct tendency was to prejudice the mind of the jury against the defendants. It had not the slightest relevancy to the case before the court. It directly appeared that the defendants had settled for the water, and that no claim whatever existed on account thereof.
    2d. The evidence about the business of the plaintiffs between January and June, 1868, was improperly admitted.
    It formed no basis whatever for determining the profit of the plaintiffs in 1869, or the damage to the good-will of their business.
    
      W. M. Powell, attorney, and Moody B. Smith, of counsel for respondents, urged among other things :
    The instruction of the court to the jury “that in 11 case they found the defendant was guilty of gross neg- ‘ ‘ ligence, it was liable for damages to business and loss “ of time,” is correct.
    The court might have gone much farther and instructed the jury that if they found, gross negligence they Avere not restricted to direct and immediate damages, but could find all damage distinctly and clearly proven and capable -of computation, however remote. The following cases sustain this doctrine : Scott v. Shepherd, 2 W. Black, 892 (the Squib case); Gruille v. Swan, 19 Johns R. 381 (Balloon case); Vandeburg v. Knox, 4 Denio, 464 ; Chandler v. Allison, 10 Mich. 460 ; Jolly v. Single, 16th Wis. 280; Fults v. Wykoff, 25 Ind. 321; Simmons v. Brown, 5 R. I. 299 ; Dubois v. Glaub, 52 Penn. 238 ; Hanover R. R. Co. v. Coyle, 55 Penn. 395 ; Sewall’s Falls Bridge v. Fisk, 3 Fost. (N. H.) 171; Sexton v. Bacon, 31 Vt. 540 ; Sedgwick on Damages, p. 85.
    The charge of the judge that “whether the defendant intended or knew of the injury is immaterial as “regards immediate damages,” is correct. (Sedgwide on Damages, 455; Rockwell v. Third Avenue R. R. Co., General Term, 1st department.
   By the Court.—Freedman, J.

The complaint alleged that the defendant let and rented to plaintiffs the first floor and basement of certain premises situate on the corner of Mott and Hester Streets in the city of Hew York ; that the plaintiffs occupied the demised premises for the manufacture of French and German mustard; that during the same time the defendant occupied the upper stories of said premises for manufacturing-umbrella frames; that from the first of May, 1868, to June, 1869, oil impregnated with iron filings, or particles of iron finely pulverized, leaked, through the negligence of the defendant, through from defendant’s premises into plaintiff’s mustard mills ; that in consequence thereof great damage has been done to plaintiff’s business ; that a great deal of their mustard has been ruined thereby ; that the character and reputation of their manufactured mustard has been almost ruined, and that their business has been greatly injured thereby; that the plaintiffs have been damaged in the premises in the sum of $25,000, and that said damage has been done without any negligence on the part of the plaintiffs.

The gravamen of the charge, therefore, was negligence on the part of the defendant in carrying on its business operations in that part of the premises occupied for that purpose. Such negligence is not a positive element, but it consisted, if it existed, in a mere omission to do something which the law required under the circumstances, or, in other words, in a want of diligence without positive intention to injure the plaintiffs. The law required that in carrying on its operations the defendant should use due diligence to prevent injury to the plaintiffs, that is to say, the defendant was bound to use the same amount of care, caution, attention, and discretion as the ordinary prudent man would put forth under precisely the same circumstances. The plaintiffs were bound to use similar diligence to guard against injury. The want or omission on either side, of such care, caution, attention, or discretion constituted negligence. Thus, the duty of such diligence, etc., etc., and consequently the negligence, was relative on both sides, that is, relative to the actual situation of affairs and the means of knowledge of the parties. These questions, therefore, had to he determined upon all the circumstances of the case, of which the relation of landlord and tenant was hut one, and a comparatively unimportant one ; and in determining them it became necessary for the learned judge below, and for the jury, if the case was rightfully sent to them, to place themselves in the position of the persons whose acts had to be judged. The evidence given upon the trial, when considered in the light of these principles, was not of such a character as would have authorized the court to determine the diligence or negligence of either side as matter of law, and consequently the questions relating thereto on both sides had to be submitted to the jury as questions of fact. For this reason defendant’s exception to the refusal of the court to dismiss the complaint is clearly untenable. The case could not be disposed of on the simple theory that as between landlord and "tenant the landlord is not bound to repair without express covenant.

A more serious question is presented by the exceptions relating to the reception of certain evidence and to certain portions of the charge that bear upon the question of damages. Evidence had been given that plaintiff’s business extended to the principal cities of the United States, and of the manner in which it was conducted ; that in March or April, 1869, mustard commenced to be returned by plaintiff’s customers on the ground of its bad quality, and that in the course of some further time all the mustard manufactured between the 1st of January and the month of June, 1869, was thus returned ; that on investigation the said mustard was found to be utterly worthless, and that it had to be thrown away ; that thereupon numerous attempts were made by plaintiffs to discover the cause, and that for that purpose and at great expense, the mills were frequently stopped, cleaned up, and thoroughly inspected, and chemical analyses were made of the mustard, and of the materials that entered into its manufacture, and that finally it was discovered that oil impregnated with iron was leaking from defendants’ premises into plaintiffs’mustard mills, and to all appearances had been thus leaking for some time, and that this had worked the injury. Evidence had also been given of the quantity of mustard thus lost, ofits market value in a sound condition, and of the expenses incurred by plaintiffs in discovering the cause of the difficulty and in obviating the injurious effects produced. Then it happened that Julius Wolff, one of the plaintiffs, on being recalled, was allowed to testify against defendant’s objection and exception, that from the first of January to the first of June of the preceding year plaintiffs had about two hundred customers, from whom they realized a profit of not less than one thousand dollars per month, and which subsequently were all lost. This ruling was erroneous for several reasons. The complaint did not allege the names of said customers. It did not even contain an averment of loss of customers as an item of special damage in general terms, bio such loss could therefore be proven (Hallock v. Miller, 2 Barb. 630 ; Tobias v. Harland, 4 Wend. 537). The evidence already given showed affirmatively that-no damage had occurred prior to 1869, and consequently the testimony objected to related to a period too remote in any aspect of the case ; for the damage complained of not being the result of intention, but of negligence, the law holds the defendant responsible only for such results as spring naturally, i. e., according to the usual course of things, from defendant’s negligent acts, unaffected by extraneous causes. Upon any such result the said testimony had no legitimate bearing, and that it may have prejudiced the defendant becomes apparent when it is considered in connection with the charge. The jury were instructed that in case they found that the negligence of the defendant was not occasional, but general and continuous—in the language of the law, gross—they should in addition to the market value of the goods actually-spoiled, and the interest thereon, find from the evidence what damage was done to the business of the plaintiffs, and should also give them compensation for the loss of time and for the trouble that they were put to. Plaintiffs’ counsel requested the court to charge further that if the defendant was guilty of gross or of reckless negligence, it is liable for the injury to the good-will of plaintiffs’ business. This proposition the court submitted to the jury by saying: “I charge you that in effect, except I prefer not to use the words good-will of the business,’ but to say the damage done to the business, as it has been given in evidence before you.” This was equivalent to saying that the jury had a right to consider the testimony objected to in determining the aggregate amount of damages.

The error committed in the reception of said testimony cannot, therefore, be disregarded ; and this being so, it is unnecessary to express an opinion on the questions raised by the remaining exceptions.

The judgment appealed from is reversed, and a new trial ordered, with costs to appellant to abide the event.

Barbour, Oh. J., .and Monell, J., concurred.  