
    Jacob Leonard and Jesse H. Leonard, Appellants, v. Laura A. Gunther, Respondent.
    
      Landlord and tenant — liability of the landloi'd where a water pipe in the room of one tenant freezes and bursts and floods the premises of another.
    
    A landlord is not liable to a tenant for damages resulting from the dangerous condition of the demised premises, created by the misfeasance or nonfeasance of another tenant, or from a fixture located therein, which is not dangerous per se, but is, by the act or omission of such tenant, converted into a nuisance. A landlord rented to a tenant two connecting rooms, the larger of which was furnished with radiating pipes supplied with heat from a furnace, while the smaller one was furnished with a chimney for the use of a stove, and contained a wash basin and a supply pipe, the water in which would not freeze if the door leading from that room into the larger room were left open.
    
      Held, that the method of construction employed by the landlord was reasonably safe, and that he was not liable for damages sustained by another tenant in consequence of the bursting of the supply pipe caused by the freezing of the water therein, where the court found that the freezing was occasioned by the act of the tenant of the above-mentioned rooms in excluding a stove from the smaller one, battening up the door thereof and leaving open an outside window.
    Appeal by the plaintiffs, Jacob Leonard and another, from a, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 10th day of October, 1899, upon the decision of the court dismissing the complaint, rendered after a trial at the Albany Trial Term, the jury haying been waived.
    
      Bailey & Dugan and Edward J. Meegan, for the appellants.
    
      Bussell M. Johnston and Learned Hand, for the respondent.
   Kellogg, J.:

This action is brought by a tenant against a landlord, or one of the landlords, for damages suffered by reason of the breaking, by frost, of a water supply pipe in another portion of the same builds ing occupied by another tenant, an order known as The Elks.”

It is not claimed that there was any defect in the pipe or that it was out of repair, or was itself improperly constructed, but that the water in the supply pipe was liable to freeze and the pipe to break in case the tenant entitled to its exclusive use failed to warm the room during wintry weather or .adopt some other means to prevent freezing.

The duty 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 in such duty. (Peil v. Reinhart, 127 N. Y. 385.) The landlord is not discharged from liability to strangers by parting with the dominion over premises which at the time of demise are known to him to be unsafe or in a dangerous condition, or upon which there exists a known nuisance.

If the dangerous condition is created by the tenant in occupation, by misfeasance or nonfeasance, or a fixture not dangerous per se is by the act or omission of the tenant turned into a nuisance on the premises demised, the landlord is not liable for damages resulting. The injury in such case has for its approximate cause the failure of duty on the part of the tenant; it is his misfeasance or nonfeasance and not that of the landlord. (Citron v. Bayley, 36 App. Div. 130; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 256; Timlin v. Standard Oil Co., 126 id. 514.)

The determination of this case ■ must, therefore, turn upon this question of fact. Was the water supply pipe a dangerous fixture, a nuisance, at the time of the demise of these rooms to the three persons representing the Elks % That a water basin ánd a water supply was needed in these rooms for the use of tenants seems not to be questioned. The small room connecting with the main room seems to have been selected in which to place the basin and its supply pipe ; presumably this was the most serviceable and convenient place. Whether more exposed here to frost than elsewhere, obviously depended upon the manner of use by the tenant. For many years this water basin and supply pipe to it had been here. The water in the supply pipe had frozen at least twice before in that number of years; such freezing was apparently owing to neglect, on the part of the tenant in occupation, of proper precautions in extreme cold periods, neglect to keep the room reasonably warm or to allow the water a reasonable flow at-the faucet, for it does not appear that it was the rule, but rather the remote exception, for the water at this place to be affected by excessive cold or frost. The evidence shows that the. room was furnished with a chimney for the use of a stove, and that a stove had been used there by prior tenants; that the door opened into the larger room, which was furnished with sufficient radiating pipes taking heat from a furnace,, and, with the door opened, the room where was located the water basin was made sufficiently warm to prevent the freezing of water in the supply pipe. That this was a reasonably safe construction on the part of the landlord, I think;, admits of but little doubt. .

.From the evidence a conclusion might properly have been reached ■that'the freezing, which did the damage to plaintiffs, was occasioned by the act of the tenants in excluding a stove from the room, closing and battening the door, and leaving open an outside window into the room where the water basin ;and supply pipe were. This seems to have been the finding of the court, and, I think, cannot be properly disturbed.

The judgment should be affirmed, with costs.

All concurred.

• Judgment affirmed, with costs»  