
    Joseph Levine, Appellant, v. Eugenia G. Baldwin, Respondent.
    
      JNegligence of a landlord in not repairing a leak in an inside rain-water pipe — lia- ■ bilityof, to a tenant occupying the basement of the building — duty,of ihelandlord , as to defects in parts of the demised premises remaining under his control — what clause as to a tenant making his own repairs does not relieve the landlord.
    
    In an action brought by a tenant of the store and basement of a building against . the owner of the building to recover damages sustained by him in consequence of water flowing into the basement, it appeared that the rain water was carried from the roof of the building into the sewer by means of'a pipe, which, at -* about the level of the top of the basement floor, was connected with a pipe leading into the sewer.; that part of this pipe was inclosed in a wooden casing.
    The plaintiff gave testimony tending to show that in May, 1899, water entered the basement, and that the defendant was. notified of the. occurrence; that the defendant sent a plumber to the premises, who made an examination, but did not discover the cause of the overflow; that some weeks later water again ■entered the basement, and that on July 10, 1899, a written notification of such .. overflow was given to the defendant. The defendant thereafter sent a plumber . -to the premises, who came to the conclusion that the water came from the ■sewer. Thereafter another overflow of water occurred, which caused the dam- • age'for whffch the-plaintiff sought to recover. The defendant'was-a'gaih notifled, and sent another plumber to investigate. This plumber found the cause of the overflow to be a hole in a trap at the point where the leader from the roof connected with the 'pipe running through the cellar. The plumber testified that the hole was caused by rats, and that it might have existed for several months.
    
      Held ', that the complaint was improperly dismissed;
    That the jury might have found that the defect in the pipe had existed for some months, and might have been discovered by proper and sufficient examination, and that the defendant, after notification that water flowed into the basement, had failed to malte a propér and sufficient examination;
    That, if the jury so found, the defendant would have been guilty of negligence and would be liable for the damages sustained by the plaintiff;
    That the defendant’s liability was governed by the rule that a landlord who, after notice, fails to remedy defects in parts of the demised premises which remain under his control, is liable for injuries sustained by the tenant in consequence of his negligence, in this respect;
    That the defendant, having undertaken to make the repairs, was bound to make them with diligence and care;
    That she could make a contract with another to attend to it, but that she was responsible for the failure of the person to whom she delegated such duty to exercise diligence and care;
    That a clause contained in the lease obliging the tenant “at his own cost and expense (to) make all repairs to the interior of' said' premises and the appuitenances thereof during said term that may be caused by the said party of the ■ second part or any of his employees, that may be necessary to preserve them in good order and condition, except any repairs that may be necessary in consequence of damage by Are or the leakage of the roof,” was limited to repairs necessitatedby acts of the tenant or of his employees and did not relieve' the defendant from liability. •
    "Van Brunt. P. J., dissented.
    Appeal by the plaintiff, Joseph Levine, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York tin,the 14th day of ktarch, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. . . . ,
    
      Joseph Fischer, for the appellant.
    
      Henry W. Simpson, for the respondent.
   Patterson, J.:

Upon the trial of this cause the complaint was dismissed. The action was brought to recover damages which the plaintiff claims he .sustained in consequence of merchandise' belonging to. kirn being injured, by the alleged carelessness and negligence of the defendant. -The-defendant was the owner of the premises No. 22-Walker street in the' city of New York, and the plaintiff was a. tétiant of part-of such' premises, namely,, the store' and basement thereof, which he -held; under a written lease. It is alleged in the complaint, that upon said-premises were water, pipes used for the purpose of carrying off rain from' the roof of the building into the seWer; - that-such' pipes ran through various floors and into the basement; that owing to the negligence of the defendant in permitting such pipes to, , become defective, rotten and leaky, water therefrom was discharged into the basement'where the "plaintiff had merchandise stored; that the floor of the. basement was covered with water and the plaintiff’s goods, consisting Of woolen fabrics, were damaged to an' amount stated. The answer admits -the ownership of the premises and the •occupation of the- store' and basement by the plaintiff as tenant; -and also that -the premises were fitted with water "pipes running from the roof,; and that they were used for the purpose of carrying off-from the roof rain falling thereon. The other allegations of the complaint were put in issue.

It appeared in evidence that the leader, by which was carried off the Water from the roof, was connected at about the level of the top of the basement floor at the rear of the building with a pipe which extended along the . whole length, of the wall of the ■ basement obliquely, in a downward direction, until it entered the sewer connection- at the front of the building. Part of this pipe placed against the Wall was: inclosed in a wooden casing. The plaintiff testified' that in May,, 1899; water entered the basement, but it would seem without doing any special damage to his merchandise. He also testified that the defendant was notified of the occurrence and that she sent a plumber to the premises, who made some examination, -but did not discover the cause of the water entering the basement. The defendant denies that any notification was given of the occurrence-in May, 1899, but some weeks afterwards water again, entered-the basement and the defendant was notified and a plumber was sent to the premises. That hótifiéation -was given in writing on July 1-0* 1899, Responding to it, the defendant’s agent sént a plumber to the premises. ■ He made an examination and Caine to the conclusion that the overflow of water into the basement was caused by the sewer being overcharged in consequence of heavy rains and the backing up of the water into the premises, This plumber testified that he found no indication of an overflow from any other source. There was a closet in the basement and this witness states that the water entered from the closet, because it was the lowest point. He took off all the casings, of the pipe for about eight feet; he did not take off the casings under the closet; he says he could not get at them, ■ Subsequently to this, another overflow of water into the basement occurred. The defendant was again notified and her agent sent another plumber to investigate and ascertain, if possible, its cause. • It was this last overflow that injured the plaintiff’s goods. The second plumber examined the water closet. He found the bowl of it perfectly dry and the basin dry, but the floor wet. He came to the conclusion that the overflow came, from Underneath the floor and he so reported to the agent of the defendant, who gave orders to remove the floor and if anything were found defective to repair it. When the floor was taken up, the defect was found. Between the vault of the building and the water closet was a disused trap, sealed up by a piece of sheet lead. There was a hole in it three or four inches wide and the witness testified that he knew what caused the hole. The trap was not corroded. It was a lead pipe — a trap. That hole had been cut by rats.” To get at this disused trap this plumber took down the casing and took up the floor, and when the trap was: exposed-the cause of the overflow was made apparent. This witness testified that he could not tell how recently the hole had been made — if it were a new thing, he could tell. Bats might have cut that hole two, three, four, five, six months ago.”

As the case then stood, the jury might have found upon the proof that the defect in the pipe, to which the overflow of water in the basement might be attributed, was something that had existed for some months — that it might have been discovered by proper and sufficient examination and that the defendant, after notification that water flowed into the basement, had failed to make or cause to be made such proper and sufficient, examination, and if they so found the defendant would have been- chargeable ■ with negligence and liable for the damages sustained by the plaintiff.

This draining apparatus or appliance was not part of the demised premises in the occupation of the plaintiff. It was something used for the benefit of the whole building. It drained the water from the roof, and the defect in the- pipe at the trap, according to? the testimony of the plaintiff, was at an elbow where two pieces of pipe came together and formed a corner, and one of those pieces making this elbow was that which ran along the inside wall from the end of the building, and thus the'póirit at which thé defect'was discovered was in the pipe with which the leader from the roof was connected — if the testimony of the plaintiff, who was present when the defect was discovered, is to be believed. The rule' of liability to be applied here is that which obtains in cases in which a landlord is responsible for injuries sustained by tenants through negligence in or upon those parts or appurtenances of demised premises which remain under the charge and control of the landlord. That liability arises after notice, and such notice was given in ample time to have the defect repaired before the last overflow, which caused the injury to the plaintiff’s goods, happened. .(Tallman v. Murphy, 120 N. Y. 345 ; Fitch v. Armour, 14 N. Y. Supp. 319; West Side Savings Bank v. Newton, 76 N. Y. 616 ; 57 How. Par. 152; Dollard v. Roberts, 130 N. Y. 269.) In Leonard v. Gunther (47 App. Div, 194) it is said that the diity of the landlord extends to keeping in proper repair all-portions of a building, including- fixtures, not exclusively demised to .a tenant, and the landlord is liable for any damage suffered by any tenant resulting from a failure of such diity. It is said in Chaplin on Landlord & Tenant (§ 488) and referred to with approval in Harris v. Boardman (68 App. Div. 439) that “ the landloa’d retains control and responsibility to a greater or less extent for the condition of those parts of the building which are used in common by or for all the tenants or those whom they invite there, such as the sidewalks, the halls and stairways and the basement space devoted to coal bins, and also of certain classes .of apparatus, such as the hot water or steam pipes, dumb-waiters, etc., employed to heat the apartments or supply other conveniences. Thus he has a degree and kind of responsibility for the fit condition of these places and things in his control which he could not be charged with in -the case of leasing outright an entire dwelling or other building. They are not part of the demised premises, and, therefore, the principle that the landlord is not bound to put or keep the demised premises in repair has no application.”

Here the duty rested upon the landlord to make repairs after notification. Further than that, the defendant undertook to make repairs, and having so undertaken, she was bound to make them with diligence and care. She could do it by making a contract with others to do it. The jury might have found that the first plumber did not exercise diligence and care, for if he had he might have discovered the condition which was disclosed to the second plumber when a thorough examination was made and the cause of the overflow was detected. (Blumenthal v. Prescott, 70 App. Div. 565 ; Brennan v. Ellis, 70 Hun, 472.)

It is suggested that the defendant is not liable because of a covenant contained in the lease of the store and basement and which reads that the plaintiff will “ at his own cost and expense make all repairs to the interior of said premises and the appurtenances thereof, during said term, that may be caused by the said party Of the second part, or any of his employees, that may be necessary to preserve them in good order and condition, except any repairs that may be necessary in consequence of damage by fire or the leakage of the roof, and that said repairs shall be equal in quality and workmanship to the original work in said building.” This stipulation of the lease only refers tó repairs necessitated by the acts of the tenant or of his employees.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  