
    Benson vs. Suarez.
    Where one leases premises to another, covenanting to keep the buildings in repair, and in consequence of his neglecting to repair the same, a shed falls, drawing down with it a building of an adjoining proprietor, and injuring the property of the latter therein, an action will lie against the lessor, to recover the damages.
    MOTION for a new trial on a bill of exceptions. The cause was tried at the Albany circuit in November, 1863, before Justice Hogeboom and a jury, when the plaintiff recovered a verdict for $50.0, for damages occasioned by the falling of a building, through the defendant’s neglect as alleged.
    
      Henry Smith, for the motion.
    
      Ira Shaffer, opposed.
   By the Court,

Peckham, J.

The defendant insists that the' judge erred in refusing to nonsuit the plaintiff. I do not think so. The'defendant was the owner ‘ of the tavern stand and appurtenances where the old shed fell. He had leased them to Finney and covenanted to keep them in repair. He failed to keep this old shed on his premises in repair, and by reason of its being left in a weak and dilapidated condition, it fell down and drew down a shed of the plaintiff adjoining to it and injured his wagons &c. to the amount of the verdict. I am not at all clear that it was necessary to show any covenant to repair by the defendant, in order to sustain this action. “Sic utere tua ut alienum non ledas,” is a sound maxim, and entirely applicable to this case. An owner has no right to erect a nuisance on his own land to the injury of his neighbors. He can not erect so weak and unsafe a building that it shall fall in ordinary times from its mere insecurity and insufficient strength, and thus injure the building or property of his adjoining neighbor, without being responsible for that injury. Nor can he suffer a building on his premises to become so much out of repair as to cause a like injury without being responsible; especially where he had notice of its condition and neglected to repair. Nor can he shield himself from liability, in such case, by charging negligence on his neighbor for presuming .to occupy his own lot, in a careful manner, in the face of such danger. What is this but saying to his neighbor, “I have erected an unsafe and dangerous building on my lot, and you must allow your’s to lie vacant and unoccupied; otherwise my building may blow down upon you and destroy your property.” (See Cook v. The Champlain Trans. Co. 1 Denio, 91; La Sala v. Holbrook, 4 Paige, 173; Patten v. Hollam, 17 John. 92.) I do not think that leasing premises to another, reserving rent with such an unsafe building thereon, discharges the liability of the owner. Whether it does or does not, however, is not material here, as the defendant in this case agreed to keep the building in repair.

It is objected that it was only for hotel puiposes that he agreed to keep in repair. That contract fully covers this case. They were not in sufficient repair for hotel purposes, when they could not stand up in ordinary weather.

[Albany General Term,

May 2, 1864.

I see no error in the charge of the judge. The plaintiff could, no doubt, be in the lawful possession of the premises leased to Finney without any covenant in writing from the defendant, the owner. He was in the actual occupation thereof. He had the consent of Finney, the lessee of the defendant, to be in; .he had the actual consent of the defendant to be in, also, but he had no written consent. As to whom then was he a wrongdoer? It"is not of the slightest consequence that the lease provided that the lessee should not underlet without the consent in writing of the lessor. This was an action upon the lease, and this plaintiff was no party to the lease. Surely, by the consent of all the parties interested, he could get into the lawful possession and occupation of the premises. He had all that, as the jury have found, and as the evidence proved.

¡Mar do I think the judge committed any error in' refusing to charge as requested; and I think the remarks already made, if correct, show that he could not be required so to charge.

A new trial is denied, and judgment ordered upon the verdict.

Peckham, Miller and Ingalls, Justices.]  