
    BENJAMIN W. FRANKLIN, Respondent, v. MARY C. BROWN, Appellant.
    
      Landlord and tenant—No implied covenant as to fitness of premises as dwelling-house—Noxious odors and gases.
    
    There is no implied covenant on the part of the landlord that premises let for a private residence, are fit for such purpose.
    Accordingly, where plaintiff let to defendant premises to be used by the latter as a dwelling-house, and defendant is forced to move therefrom, before the expiration of the term, by reason of noxious gases and odors, arising from adjacent premises, and of which both parties were ignorant at the time of the letting, defendant cannot set up as a counter-claim the damages caused thereby, in an action brought by the landlord for rent.
    The rule is the same though the premises be let furnished, to be used as a private residence only.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    
      Decided July 2, 1886.
    Appeal by defendant from judgment entered upon the report of a referee.
    Action to recover rent for three months, claimed to be due plaintiff by defendant, according to the terms of a written lease, of the dwelling-house, No. 6 West 17th Street, in this city'.
    
      The defendant admitted the living in and occupation of the house as stated in the complaint, but alleged as a counter-claim that by reason of the existence of noxious gases and stench in and pervading the house, she became so ill that she was obliged to leave it, and to incur various medical and other expenses necessary to her cure, which amounted to more than the rent claimed to be due. The referee found that during the times covered by the lease, noxious gases and vapors and unhealthy odors existed throughout the house in very large quantities, and made it impossible for the defendant to use the furniture therein without injury to her health ; that in attempting to use such furniture her health was injured by the vapors, odors and gases ; that the furniture in the house was an important - element in determining the consideration to be paid by defendant to plaintiff; that the house was unhealthy during the period covered by the lease, and not in fit condition to be inhabited by the defendant without danger to her health ; and that the house, its fixtures and furniture were let to defendant for a private dwelling-house to be used by her as a private residence only.
    The referee found also that the defendant incurred medical expenses which were the immediate and necessary result of her living in said house, and that she incurred certain hotel expenses, while she was unable to live in the house by reason of its unhealthy condition. He found, however, that the noxious gases did not arise from the house itself, but came from the adjoining premises, which were used as a stable, and that neither the plaintiff nor the defendant knew of the existence of these noxious gases, &c., in the house prior to the defendant signing the lease.
    
      John G. Agar, for appellant:
    
    If a person contracts for a consideration to let another use a furnished dwelling-house for a particular purpose, e. g., dwelling therein as a private residence, he impliedly warrants the use for that purpose for which he receives the consideration, free from all defects and incumbrances. (1) Contracts for the letting and hiring of ready furnished houses and apartments are contracts of a mixed nature, partaking partly of a demise of realty and partly of a contract of letting and hiring of movable chattels. The lessor, therefore, in such contracts, is clothed with the obligations resulting from the contract of letting and hiring of chattels, in addition to those which have been acknowledged to flow from the demise of realty simply. (1 Addison Contr. 446-7; 1 Washburn Real Prop. 544; Taylor Landlord & Tenant, § 382). (2) A person who lets a chattel for hire for a particular purpose, and imposes an obligation upon the hirer that it shall be used for no other purpose, intends that it shall be fit, and impliedly represents, and therefore impliedly warrants, that it is fit for that purpose (Harrington v. Snyder, 3 Barb. 38 ; Horn v. Meakin, 115 Mass. 330; Fowler v. Locke, 7 L. R. Comm. Pleas, 280 ; 1 Addison Contr. 510; Edwards Bailments, 374; Story Bailments, § 383, 9 ed.). (3) The plaintiff intended and represented the furniture in this house to be applicable to the use of a dwelling-house, by covenanting with defendant that she should use it for no other purpose. (4) The breach of the implied covenant of warranty is sufficient to predicate defendant’s counter-claim upon (Mayor v. Mabie, 13 N. Y. 151). (5) Smith v. Marrable (11 Mees. & W. 5), was an action for use and occupation of furnished house. The house was infested with bugs and unfit-for occupation, and the tenant quit. Held, that there is an implied condition in letting a furnished house that it shall be reasonably fit for habitation. If not, tenant may quit. See also to same effect Sutton v. Temple (12 Mees. & W. 60); Campbell v. Lord Wenlock (4 Foster & Finlanson, 716); Wilson v. Hatton (E. L. R. Exch. Div, 336). This law has been approved in America, in Dutton v. Gerrish (9 Cush. 94); Howard v. Doolittle (3 Duer, 469); Cleves v. Willoughby (7 Hill, 88 ; 1 Washburn Real Prop. 544; Taylor, Landlord & Tenant, § 382 ; 3 Kenfs Comm. 469, note b). It has been criticised in Chadwick v. Woodward (13 Abb. N. C. 441). But that case is wanting in every element which distinguishes the English cases, and makes them resemble the case at bar.
    
      Augustus H. Vanderpoel and Delos McCurdy, for respondent:
    In the English cases cited by appellant, the houses were rented for a brief period as summer residences, and, as the court assumed, were represented by one party and understood by the other to be in suitable condition to be used as residences during the short period for which they were to be occupied, and the actions were for damages for use and occupation. Parke, B., states (Sutton v. Temple, 12 Mees. & W. 60), that in order to support the doctrine of Smith v. Marrable, Edwards v. Etherington, Collins v. Barrow, &c., it is necessary to import into the cases the fact, “that there was some default on the part of the landlord, in not making the premises fit for occupation, pursuant to an express contract to do so.” And further, the case of Smith v. Marrable is understood to have been distinctly overruled by the subsequent cases of Sutton v. Temple (12 M. & W. 60), and Hart v. Windsor (12 Ib. 68); Francis v. Cockrell (L. R. 5 Q. B. 501); Carson v. Godley (26 Penn. St. 111) ; Howard v. Doolittle (3 Duer, 464); Dutton v. Gerrish (9 Cush. 89) ; Foster v. Peyser (9 Ib. 242) ; Royce v. Guggenheim (106 Mass. 201); Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245).
    II. The rule of law is well settled in this state that upon the letting of a dwelling-house there is no implied warranty of its fitness for the purpose for which it was let (Jaffe v. Harteau, 56 N. Y. 398 ; Cleves v. Willoughby, 1 Hill, 83 ; Mumford v. Brown, 6 Cow. 415 ; Westlake v. Degraw, 25 Wend. 669 ; Chadwick v. Woodward, 13 Abb. N. C. 441; Coulson v. Whiting, 14 Ib. 60 ; Sutphen v. Seebass, 14 Ib. 68 ; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245).
    III. It was claimed below that because furniture was included in the lease the contract was taken out of the ordinary rule of law, and an implied warranty raised that the house itself was and would continue to be fit for the purpose for which it was let. No such rule of law exists in this state or elsewhere. The maxim caveat emptor applies to the transfer of all property, real, personal and mixed, and the purchaser takes the risk of its quality and condition unless he protects himself by an express agreement to the contrary. The only exceptions are believed to be a sale by sample, a sale of goods for a particular purpose, an executory contract to manufacture an article for a specific use and a sale of provisions for domestic use.
    IV. Even if the lease of these premises had contained an express covenant that the house was and would remain fit for habitation, such covenant is not broken by a nuisance arising in the-neighborhood not caused by the landlord or under his- control, even if such nuisance renders the house unfit for habitation (Cohen v. Dupont, 1 Sandf. 266 ; Royce v. Guggenheim, 106 Mass. 201; Pendleton v. Dyett, 4 Cow. 581 ; Edwards v. N. Y. & H. R. R. Co., supra). A covenant for quiet and peaceable enjoyment only secures the tenant from the lawful interruption of such enjoyment by persons having a title paramount to that of his landlord, or an interruption by the landlord, or those claiming under him, and not by a stranger (Gilhooley v. Washington, 3 Sandf. 330 ; Gilhooley v. Washington, 4 N. Y. 217; Townsend v. Gilsey, 7 Abb. N. S. 59 ; Ogilvie v. Hull, 5 Hill, 52; Egerton v. Page, 20 N. Y. 281 ; Wood’s Landlord and Ten. 801-804 ; Mortimer v. Brunner, 6 Bosw. 653).
   By the Court.

O’Gorman, J.

(After stating the facts as above.)-—There is sufficient evidence to sustain these findings of fact, and the only question of law which arises, is whether or no there was any implied covenant on the part of the lessor, plaintiff, that the house was fit for habitation as a dwelling-house, or whether any duty existed on his part towards the plaintiff, from the breach of which she incurred damages, which she was legally entitled to charge against him as a counter-claim in this action.

This question has, from time to time, been the subject of contention in the courts, both of England and of the United States. In this state, however, the conclusion may be fairly gathered from decisions of prevailing authority, that, in the absence of any covenant in the lease itself, as to the fitness of the leased premises for occupation as a dwelling, , no covenant of the lessor can be implied on the subject, and that unless by reason of direct or constructive fraud or culpable negligence on the part of the lessor, the tenant hires at his peril; and a rule similar to that of caveat emptor applies, and throws on the lessee the responsibility of examining as to the existence of defects in the premises and of providing against their ill effects.

There is no responsibility on the landlord in such cases, except such as arises from absolute delictum on his part (Jaffe v. Harteau, 56 N. Y. 398 ; Meeks v. Bowerman, 1 Daly, 99 ; Wallace v. Lent, Ib. 481 ; Coulson v. Whiting, 14 Abb. N. C. 60 ; Sutphen v. Seebas, Ib. 61). If, for instance, the landlord knew before, or at the time of the letting, that the premises were, by reason of some latent defects, unfit for occupation in the use for which they were hired, and he failed to disclose these defects, he would be guilty of negligence (Edwards v. R. R., 98 N. Y. 245). He would also be liable if the defect arose from his own wrongful act (Chadwick v. Woodward, 13 Abb. N. C. 441 ; Rhinelander v. Seaman, Ib. 455).

In Cesar v. Karutz (60 N. Y. 229), the plaintiff claimed damages from defendant on the ground that, being owner of a house, in certain rooms of which tenants had been recently ill of smallpox, he with knowledge of that fact, failed to disclose the same to the plaintiff, and leased to the plaintiff the rooms which had been thus occupied to the damage of the plaintiff. The court of appeals sustained a verdict for the plaintiff on these facts.

In the case at bar, however, the facts are not similar. Here, the plaintiff, lessor, and his tenant, the defendant, were, at the time of the execution of the lease, equally ignorant of the existence of the noxious gases and odors which rendered the premises unfit for the purposes of her living there, and no defect in the house itself was the cause of the mischief, but it was wholly attributable to the stench from the adjoining stable, and the stench increased in intensity after the plaintiff had for some time continued her occupation under the lease. Nor did the defects arise from any wrongful act or culpable negligence of the plaintiff.

On these facts the referee’s conclusions of law were proper and must be sustained. In Edwards v. R. R. (98 N. Y. 245, et seq.), the rule of law as to the. responsibility of the landlord is clearly laid down. “ The responsibility of the landlord is the same in all cases. If guilty of negligence, or other delictum, which leads directly to the accident and wrong complained of, he is hable ; if not so guilty, no liability attaches to him.

The judgment below is affirmed, with costs.

Sedgwick, Oh. J., and Truax, J., concurred.  