
    William H. Ash, Respondent, v. Emma Meeks, Appellant.
    Second Department,
    October 8, 1909.
    Landlord and tenant — misrepresentation of condition of furnished house — notice to repair—hidden defects — fraud.
    Action to recover the rent of a furnished house, the defense being that the tenant had vacated 'because she was induced to make the lease by fraudulent representations respecting the condition of the premises. Evidence examined, and held, that a finding by the jury that there was no representation by the landlord that the heating system was sufficient was against the weight of the evidence.
    Where prior to a lease the landlord, through his agent, represented that the house had been put in perfect order, as previously agreed, the tenant may vacate, if the landlord failed to repair a serious leak in the roof after notification of the defect.
    Where a serious defect in a cesspool connected with the house was not discoverable by inspection, except when the premises were in use, the landlord was bound to disclose the defect, where he induced the execution of the lease by stating that the premises were in perfect order.
    While a landlord makes no implied covenant to repair, or implied representation that the premises are tenantable, the rule has no application, if there was fraudulent misrepresentation or concealment.
    There is a distinction between letting an unfurnished house and one furnished ready for occupancy, and where the tenant claims misrepresentation and deceit, the fact that the house was let furnished is a circumstance to be considered in determining the question of fact.
    
      Appeal by the defendant, Emma Meeks, from a judgment of the Municipal Court of the city of Mew York in favor of the plaintiff, rendered on January 29, 1909.
    
      William E. Bennett, for the appellant.
    
      Robert Kristeller, for the respondent.
   Miller, J.:

This action is brought to recover the fourth instalment of rent, pursuant to the terms of a written lease whereby the plaintiff leased a furnished house to the defendant for the term of one year. The defendant pleads both as a defense and a counterclaim that she was induced to enter into the lease by false and fraudulent representations respecting the condition of the premises, wherefore she removed therefrom. The Municipal Court justice submitted the case to the jury who found a verdict for the plaintiff.

It appears to be practically undisputed that a cesspool on the premises near the house frequently overflowed, creating a nuisance ; that the roof over the butler’s pantry leaked so that, whenever it rained, the pantry and laundry were flooded; and that the steam heating apparatus was in such condition that it was impossible to heat the house. In place of air valves in the radiators there were lead pencils, which blew out whenever there was any pressure of steam. The defendant went into possession on the 16th of April, 1908, and moved out on the ninth of May. Before doing so, however, she notified the plaintiff and his agent of the objectionable conditions, which were not remedied.

The defendant’s evidence tends to show that, before the lease was made, she particularly called the plaintiff’s attention to the necessity of an adequate heating system as she intended to occupy the house for a year; that the plaintiff represented that the furnace heated the house perfectly, and stated that some repairs to the house were needed which he would have made, and that he would put everything in perfect order ; that subsequently the lease was prepared and brought to the defendant by the plaintiff’s agent, who stated that the house was ready for occupancy, and that everything had been put in perfect order. The plaintiff denies the making of any representations. He did not call the agent, and he admits that inquiries were made by the defendant, respecting the heating system, but claims that, instead of making any representations respecting the matter, he left it to the defendant to observe for herself.

I think the finding of the jury that there was no representation that the heating system was sufficient is against the weight of the evidence. If the defendant was particular to make specific inquiries on that subject it is altogether improbable that' she was satisfied to take, the house without some assurances. The. house had usually been rented for the summer only— a reason for making particular inquiry in reference to the heating system. It is not denied that the plaintiff’s agent represented to the defendant before the lease was signed that the house had been put in perfect order. The plaintiff says that the roof leaked because one of his workmen had driven a nail in it, leaving a hole, but it is undisputed that the defendant called his attention to it and that he did not repair it. I do not think that she was bound to do more than that.

Moreover, the condition of the cesspool was one not discoverable on inspection unless the premises happened to be in use. It was a serious defect, and I think one which the plaintiff was bound to disclose. It appears that the house was damp and cold, that the defendant contracted an illness, and that she moved on the advice of her physician.

While the law of this State undoubtedly is that there is no implied covenant on the part of the lessor to repair, and no implied representation that the premises are tenantable (Franklin v. Brown, 118 N. Y. 110; Daly v. Wise, 132 id. 306), that rule has no application where there is fraudulent misrepresentation or concealment. If the lessor knows of a hidden defect his concealment of it is fraudulent; and of course, if he knowingly make actual misrepresentations, he is guilty of fraud. I think the preponderance of the evidence in this case shows that the plaintiff did practice deceit upon the defendant, that he did lead her to think that the heating apparatus was adequate to heat the house and that he knowingly concealed the fact that the cesspqol was inadequate. It may be that the rule declared by Chief Baron Abihger respecting the letting of a ready furnished house (Smith v. Marrable, 11 M. & W. 5) is not the law of this State (See Franklin v. Brown and Daly v. Wise, supra); but I think there is a distinction between the letting of an unfurnished house and one furnished ready for occupancy, and that, where misrepresentation and deceit are claimed, the fact that the house is being let furnished ready for occupancy is a circumstance to be weighed in determining the question of fact. I think the verdict of the jury is so plainly against the weight of evidence as to require a new trial.

Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  