
    William Walker, administrator, &c. of Emily Olcott, deceased, plaintiff, vs. George B. Gilbert and Thomas H. Bird, defendants.
    1. Without covenant on the part of a lessor to repair damages sustained hy a tenant by injury to merchandize from, the -leaky condition of the ceiling or roof of the demised premises are not the subject of recoupment, or counterclaim, in an action for rent; unless the lessor has hound himself by a special valid promise to repair the leak.
    2. A promise by parol, made subsequently to the execution of the lease, needs a new and sufficient consideration to uphold it.
    3. A subsequent promise, by the lessor, to repair, cannot be deemed to have been broken, except by his neglect to perform it, after sufficient time has been afforded him for that purpose.
    4. A promise hy the lessor, to pay for damages after they have been sustained, or to allow the same upon the rent, made without any sufficient consideration, is not binding upon Mm; nor is the refusal to perform it available as a defense to an action for rent. •
    6. A promise by a lessor, in such case, to a tenant, to pay the difference between the price such goods would bring, in case they were sold at auction hy Mm, and the invoice price, is not binding upon him, for want of a sufficient consideration, without a concurrent obligation by the tenant so to dispose of them; or some other valid consideration.
    6. The mere subsequently acting upon the lessor’s suggestion, by selling the goods at auction, would not make the. prior agreement mutual.
    (Before Barbour, Monell and Garvin, JJ.)
    Heard March 16, 1864;
    decided April 30, 1864.
    The plaintiff is an administrator with the will annexed on the estate of Emily Olcott, deceased. The estate was possesed of certain leasehold premises, known as No. 114 Chambers street, in the city of New York. On the 13th day of March, 1862, the plaintiff, as administrator, leased the premises to the defendant for one year from the 1st day of May, 1862, at an annual rent of $1500, payable quarterly. The defendants refused to pay the quarter’s rent that became due on the 1st day of May, 1863, and this action is brought to recover the same. The defendants, by way of defense, state that on the 14th day of April, through a defect in the roof of the building, they were flooded and damaged to the amount of $1240, and they set up that there was an agreement to allow this damage by way of payment of the rent for which this action is brought. They also set up in their pleadings an agreement, upon a “ valuable consideration,” to repair. The lease contained no such agreement, and the defendants did not claim it under the lease.
    The case came on to be tried on the 18th day of February, 1864, before his Honor Judge Monell and a jury.
    The court directed a verdict for the plaintiff for $396, to which ruling and direction the defendants’ counsel excepted. The court then ordered that the exceptions be heard in the first instance at general term, and that judgment be in the mean time suspended.
    
      E. B. Hinsdale, for the plaintiff,
    I. A landlord is in no case bound to repair, unless by force of an express covenant or contract. (Howard v. Doolittle, 3 Duer, 464. Sherwood v. Seaman, 2 Bosw. 127. Cleves v. Willoughby, 7 Hill, 83.) If a parol agreement to repair is proved to have been made subsequent to a written lease, it must be upon a “new and sufficient consideration.” (Post v. Vetter, 2 E. D. Smith, 248.) There is no pretense that there was an express covenant to repair. The only parol agreement attempted to be proved is at fols. 3 and 4. At fol. 9, this witness admits that he “ did not agree to pay any. thing for making these repairs.” The pretended agreement, as proved by the defendant, is therefore utterly void. There is not enough in the evidence, by the most liberal construction, to amount to a contract in any legal sense.
    II. As the plaintiff was not bound to repair in any manner, so also was he not responsible for the consequences of not repairing. . It would be absurd to hold him liable for the consequences of failing to repair, when he was not under obligation to repair. The pretended agreement to allow the damages as an offset to the rent, set up in the answer, is in the first place void, for a want of consideration, and secondly, is not proved by the evidence. If any agreement was made between these parties, as set out in the answer, it would, like all other legal agreements, require a consideration to sustain it. There are but two sources from which a sufficient consideration could have Drung. One source would be for the defendants to pay or do something for the plaintiff which would constitute a consideration. On the cross-examination of both of the defendants’ witnesses, they were asked for the consideration, and they agree that “ nothing was paid for the agreement. As no' obligation to repair rested on the landlord, and nothing was paid for any agreement to allow the damages on the rent, it follows that if any agreement was ever made it was a perfect nudum pactum.
    
    III. The pretended agreement to allow the damages as an offset to rent, is not proved. The evidence shows negotiations only, and before any bargain was closed, Mr. Walker consulted with the heirs and refused to close up the matter after they objected to it. This was the only course a prudent man could take.
    IV. There is nothing in the facts set out in the answer to constitute a defense or counter-claim, aside from the pretended agreements, which were made without consideration, and are therefore void. (Edgerton v. Page, 20 N. Y. Rep. 281.)
    V. The defendants’ offer to show neglect in repairing the roof was properly excluded. The pleadings set up no such matter by way of defense. The neglect proposed to be proved -was first, in “ construction.” A leaky roof cannot be contorted into a defect in construction. But whatever the defect in construction was, there is no implied contract or warranty on the part of the landlord that a tenement shall be, or continue fit for the purpose for which alone it is demised. (Howard v. Doolittle, 3 Duer, 464. Schermerhorn v. Gouge, 13 Abb. 315. Arden v. Pullen, 10 Mee. & Wels. 321. Post v. Vetter, 2 E. D. Smith, 248.) Secondly. The offer was to show neglect in “ repairing ” the premises. This the landlord was not bound to do. Thirdly. The offer was to show neglect in “ upholding.” This is a term of no very clear legal meaning in this connection, but probably means about the same as “ repairing.”
    
    VI. The offer of the defendant was to show the neglect of. the plaintiff to construct, repair and uphold the premises above those occupied by the defendants. There is no such distinction known in law. The common roof over the whole premises was as much a part of the premises rented by these defendants, as the common foundation stones under the whole building. The defendants rented the premises and took them as they were constructed, both as to foundation and roof, and exacted no covenants from the landlord as to the condition of the building, or as to future repairs. (Schermerhorn v. Gouge, 13 Abb. 315. Arden v. Pullen, 10 Mee. & Wels. 321. Sutton v. Temple, 12 id. 52. Hart v. Windsor, Id. 68.)
    VII. The case of Eakin v. Brown, (1 E. D. Smith, 36,) has been cited by the defendants to sustain this defense. A close examination of that case shows that it has no bearing upon the case now in court.
    
      First. The parties in that action were co-tenants of the same building. The relation of landlord and tenant did not exist between the parties, and of course all that great system of laws applicable to landlord and tenant, had no application in that case. .
    
      Second. The gravamen of that action was negligence in the use of internal machinery introduced into the building to control the flow of the Croton water. All that the learned justice says about the law as applicable to the relation of landlord and tenant, is obiter dictum. When rightly understood, the judge in that case does not say any thing which can susr tain the defense interposed in this action.
    VIII. There is nothing in the circumstances of this case that calls upon this court to override well settled rules, or to strain the law to fasten upon the heirs of this estate this loss. It was simply an accident, without bad faith or fraud upon any one. Neither party knew that the property was in so great peril. The defendants were certainly greatly to blame for leaving their goods so exposed, if they knew it, and in not communicating their knowledge to the landlord. The defendants, both in law and common justice, are the proper parties to bear the loss from this accident, and judgment should be ordered for the plaintiff.
    
      Henry Wittaker, Jr. for the defendants.
    I. The agreement of the plaintiff to ascertain the amount of the damage done to the defendants’ goods in a certain way, and to apply the amount of such damage, when so ascertained, in payment of the. rent as it should fall due, is valid and conclusive. When the amount of damage was ascertained in the way agreed, no further act remained to be done, and the rent was pro tanto paid. The contract then became ipso facto an executed one, and ceased to be executory. (Flint v. Clark, 12 John. 374.)
    II. The agreement was in effect a submission to arbitration, and the fact of a controversy existing between the parties, and of the defendants agreeing to part with their property, and send the same to auction, was a sufficient consideration for the agreement of the plaintiff. The defendants having performed their share of the contract, the plaintiff is bound to abide by the result or award, and no special agreeement to do so need be proved, as the law will imply it. (Valentine v. Valentine, 2 Barb. Ch. 430.) And the fact of his being a trustee makes no difference in his power to make the contract. (Weed v. Ellis, 3 Caines, 253.)
    III. But there was a still further consideration for the agreement, in the liability of the plaintiff to the defendants for the damages in question.
    
      1. The plaintiff, as owner of the premises above those leased to the defendants, was bound to keep and maintain them in proper repair, and to use them without negligence, unskillfulness or malice. He was, as to those premises, an adjoining proprietor, and was liable to the defendants for any damage which arose from their defective construction or want of repair. (Eakin v. Brown, 1 E. D. Smith, 36 [43, 44.] 1 Hilliard on Torts, 2d ed. 129. Comyn’s Digest, Action on the case for Negligence, A. 3. Tenant v. Golding, 6 Mod. R. 311-315. Taylor’s Landlord and Tenant, 3d ed. § 197, p. 134.)
    2. The defendants had no access to the upper part of the building. The water which did the damage came from the upper part, though the ceiling of the premises occupied by the defendants, and, in the absence of any evidence to the contrary, the deluge must have arisen from the defective construction or want of repair in the upper part.
    3. But the defendants offered to prove affirmatively that the damage was caused by the defective condition of the upper part, and the exclusion of such evidence will be ground for a new trial, if the court shall decide that, on the case as it stands, the defendants have failed to prove their defense.
    4. Even if the damage had arisen from want of repair in the premises occupied by the defendants, the agreement of the plaintiff, made before the deluge, would render him liable. A subsequent parol agreement by the landlord to repair, made upon a new and sufficient consideration, is valid. (Post v. Vetter, 2 E. D. Smith, 248.) The premises had been rendered untenantable, and the rent was thereby suspended. (Laws of 1860, p. 592, ch. 845.) And the waiver by the defendants of their, right to claim a suspension of rent under that law, and their consent to remain on the premises, was a sufficient consideration for the agreement of the landlord to repair.
    5. And even if the strict legal liability of the plaintiff was not such as to form of itself a consideration, yet he had by his acts, representations, and promises, induced the defendants to act in such a way, and to relinquish such rights, as to create a moral obligation on his part, which will sustain the promise and form a sufficient consideration therefor. (Bentley v. Morse, 14 John. 468. Cameron v. Fowler, 5 Hill, 306.)
   By the Court,

Monell, J.

The action was to recover a quarter’s rent accruing from February 1st to May 1st, 1863. The demise was of the first floor and basement of premises in Chambers street in this city, for one year ending May 1,1860. The lease was not read, nor was there any evidence that it contained a covenant or agreement by the lessor to repair. On the 14th of April, 1863, a leak was discovered from the ceiling of the store, doing damage to the defendants’ goods. They sent for the lessor, who promised that he would■ immediately have it attended to. The same night a storm occurred, and a large quantity of water came in, wetting the defendants goods, doing them great injury.

There being no covenant to repair, in the lease to the defendants, the damages they sustained from the leaky condition of the ceiling or roof over the premises demised, were not the subject of recoupment or counter-claim in this action, Edgerton v. Page, 20 N. Y. Rep. 281; ) unless the promise of the plaintiff in April, 1863, to have the leak attended to, was valid. At that time, the premises had been in the possession and occupancy of the defendants for upwards of eleven months, under a lease wherein they agreed to pay rent, notwithstanding the premises might be out of repair. There was no obligation resting on the- plaintiff to make any repairs, and there was no consideration whatever paid by the defendants to the plaintiff for his promise to repair. Such promise was therefore void, and no action could have been sustained by the defendants for the non-fulfillment of it. The promise having been made by parol, subsequently to the written lease, it needed a new and sufficient consideration to uphold it. Post v. Vetter, 2 E. D. Smith, 248.) Besides, the promise to repair was made on the same day, and shortly before the damage was sustained. It does not appear that there was sufficient time, between making .the promise and the happening of the injury, to have made the necessary repairs ; and the plaintiff cannot be deemed to have broken Ms engagement, except by his neglect to do the thing he promised, after sufficient time had been afforded him for the purpose. And besides, again, the defendants do not claim in their answ.er, either to recoup their damages or recover them as a counter-claim against the plaintiff. The offer of the defendants, therefore, to show that the overflow occurred from the neglect of the plaintiff to repair the upper part of the premises was properly excluded.

But it is claimed that the plaintiff's agreement to pay such damages as the defendants had suffered, or to allow the same upon the rent, was binding, and is available to the defendants in this action.

The evidence was that the plaintiff, upon being informed of the injury, admitted the damage, and said the question was as to how the amount should be ascertained and settled. He “ suggested ” the best way to ascertain the amount of damage would be to send the goods to auction and he would pay the difference between the amount they sold for, and the invoice price. He urged that the estate was poor, had no money, and that this must be paid. out of the rents ; “ to this I (the defendant) assented.” “Nothing further was said at the time. The goods, at his suggestion, were sent to auction ; the account of sales and the invoices were then sent to the plaintiff, and the amount of difference ($1240) shown.” The plaintiff refused to carry out the arrangement.

If the promise to pay or allow the difference between the auction and the invoice price of the damaged goods, as the damages suffered by the defendants, is supported by a suffi-. cient consideration, it is binding ; and the plaintiff's refusal to perform was a good defense to this action.

The plaintiff was not, as we have seen, under any covenant or agreement to repair ; and was not, therefore, liable for the injury occasioned by the defective condition of the demised premises. The assumption of a supposed liability, which has no foundation in law or in fact is not a valuable or sufficient consideration to sustain the promise, (Cabot v. Haskins, 3 Pick. 83,) and one who, through a mistake of the law, acknowledges himself under an obligation, which the law does not impose, is not hound by such promise. (Silvernail v. Cole, 12 Barb. 685. Warder v. Tucker, 7 Mass. R. 449. Ross’ Ex’rs v. McLaughlan’s Adm’r. 7 Graft. 86. 1 Pars. Cont. 363.) And this, perhaps, is the only exception to the rule ignorantia juris non excusat.

A benefit to the one party, or an injury or detriment to the other, is a good consideration, but the benefit must be such as the party is not entitled to, except as a consideration of his undertaking, or the injury must be to the legal rights, not to the wrongful claims, of the promissee. (Converse v. Kellogg, 7 Barb. 590.)

It is not pretended that there was wj.benejit resulting, or that could result, to the plaintiff; nor was there any injury or detriment to any legal right of the defendants. If they sustained any injury, it was in sending their goods to auction, which, it may be said, was attended by some outlay to the defendants. But that was a mere mode of ascertaining the amount of damages ; and it does not appear, (which I think it should, to be at all available,) that the defendants were to any extent damnified thereby. There is no necessary connection between the sale by auction, to ascertain the extent of the injury, and the promise to pay, One is quite independent of the other ; and it seems to me clear, that a supposed or conjectured injury or loss to the defendants, in disposing of their property in the manner suggested by the plaintiff, cannot be resorted to as furnishing a consideration for the promise.

But, if there was an injury to the defendants, and it was such as would furnish a sufficient consideration for the promise, the agreement to send the goods to auction (if a suggestion made by one party and not acceded to by the other can be called an agreement,) was void for want of mutuality.

Chitty says (Chitty on Cont. 15) that if one party never was bound on his part, to do the fact which forms the considera-' tion for the promise of the other, the agreement is void for the want of mutuality. This, however, is confined to those cases where the want of mutuality would leave one party without a valid or available consideration for his promise. (Arnold v. Mayor of Poole, 4 Man. & Gr. 860.)

The case before us shows, that the plaintiff “ suggested” the sending the goods to auction 'as a mode of- ascertaining the damages, but it no where appears that the defendants agreed to such an arrangement; and they were not concluded by the auction sales as the measure of their damages. The plaintiff could not have enforced the agreement and compelled a sale at auction, or insisted upon that as the only mode of determining the extent of his liability.

Subsequently acting upon the suggestion, by selling the goods by auction, did not make the agreement mutual. In The Utica and Schenectady R. R. Co. v. Brincherhoff, (21 Wend. 139) the defendant agreed that if the plaintiffs should locate their road on Water street, &c. in the city of Utica, and should require for the purposes of their road certain lands in the vicinity, the defendant in consideration of the benefits which she would derive from such location, would pay such sum as the said lands should be appraised at, in case the same should be taken by the plaintiffs. The plaintiffs located their road as designated in the agreement, and took certain lands required for the purposes of their road. The action was upon the agreement, to recover the appraised value of the lands taken. The agreement was held to be void. Nelson, Ch. J. says: “ The written instrument is but a simple proposition, and no averment that it was acceded to by the plaintiffs. The fact..that they afterwards located the road agreeably to the terms of the proposition is, of itself, nothing; it should have appeared that they had agreed with the defendant, thus to locate it, as a consideration for the promise. The promise of each must be concurrent, and obligatory at the same time, to render either binding.”

The assent of the defendants, as testified to by the defendant Bird, was to the allowance of the damages upon the rent, not to the sending of the goods to auction ; for he says, (after stating the proposition of the plaintiff to sell the goods, &c.) he (the plaintiff) then went on to urge that the estate was. poor, and that the damages must be paid out the rents ; “ to this I assented.” If there was any question as to the application of the words “ to this I assented,” it was a question of fact for the jury,' and no request was made by the defendants to submit any question to their determination. It is too late to object now.

The defendants not having agreed, at the time, to the sale by auction, were not bound by that mode of ascertaining the damages, and the agreement was, therefore, all on one side. This furnishes an additional reason for declaring the promise void.

We are of opinion that the plaintiff was entitled to a verdict for the rent claimed, and that the direction to the jury was correct.

The exceptions should be overruled, and judgment directed for the plaintiff upon the verdict.

Barbour, J.

dissenting. (After stating the facts.) It is quite clear that the defendants are not' entitled, under the allegations in their answer, to recover the damage sustained by them upon the ground, simply, that the plaintiff was bound by the maxim sic utero tuo ut alienum non Icedas, as .the owner and occupant of adjoining or adjacent premises, and independent of his agreement with the defendants, to keep the roof in such repair, as that injury should not thereby be done to his neighbors. The questions are, -first, whether the undertaking of the plaintiff to repair, was founded upon a sufficient consideration, an oral agreement to that effect, so supported, being good ; (Post v. Vetter, 2 E. D. Smith, 248;) and, if not, then, secondly, whether his implied oral admission that he was liable for the damage, and his agreement with the defendants, that the goods should be sold at auction by the latter, and that such sale was had, (irrespective of any promise on his part to repair,) entitle the defendant to a recovery here.

The point, taken at the hearing, that when the promise to repair was made by the plaintiff, the premises occupied by the defendants were in an untenantable condition, and, therefore, that the running of the rent was suspended under the operation of the 845th ch. of the Laws of 1860, (p. 592,) cannot be sustained; there being no evidence that the premises were then untenantable. But, if it was, legally, the duty of the plaintiff to keep the roof in such repair that the defendants should not be injured thereby, it can hardly be doubted that such obligation constituted a good consideration for the promise. A promise to do that which the promisor is legally bound to do, needs no new consideration to support it. (Chitty on Cont. 47.) Even a moral obligation is, in many cases, sufficient (Id. Bentley v. Morse, 14 John. 468. Cameron v. Fowler, 5 Hill, 306.)

In the printed case before us, it is admitted that the plaintiff was the owner of the entire building, including, of course, the roof, at the time of the injury; and I think the jury would have been warranted in finding, from the plaintiff'’s promise to repair, with the other circumstances testified to by the witness, and in the absence of evidence to the contrary, that he was also then in the actual possession of all the building except that part occupied by the defendants ; and as the case also shows that the premises occupied by the defendants, were wholly unconnected with the other portions of the building, I can perceive no reason why the plaintiff was not bound as a neighbor, owning and occupying adjoining premises, even though covered by the same roof, to so manage his own property, as not to injure that of his neighbor, just' as much as he would have been, had the premises occupied by the respective parties been covered by different roofs, or even separated by intermediate buildings; although he was not, under any provisions contained in the lease, nor at all in his character as landlord, required to keep the roof in a safe condition. (See Eakin v. Brown, 1 E. D. Smith, 36; 1 Hillard on Torts, 129; Tenant v. Goldwin, 6 Mod. R. 311.) The defendants, then, having proved a valid undertaking on the part of the plaintiff to keep his roof tight, were entitled, under the pleadings, to show that the injury to their goods was caused by the plaintiff’s failure to -perform. It follows that the court erred, I think, in excluding the evidence offered to show that the injury was so caused.

I am of opinion, too, that the evidence before the jury would have justified them in finding, had the case been submitted to them for that purpose, that the defendants presented their claim to the plaintiff for the damages in question, and that he admitted his liability ; that it was thereupon agreed between the parties that the goods should be sent by the defendants to auction and there sold, and the amount of damage, thus ascertained, should be applied upon the rent, and that they were so sold in accordance with such agreement; and that those facts would have authorized a verdict for the defendants, independent of the question as to the promise of the plaintiff to keep the roof in proper repair. For the agree-! ment proven was a mutual one ; the defendants undertaking to send their goods to auction, and have them there sold, including, of course, the payment by him of the costs of cartage, and the auctioneer’s commissions, and the plaintiff, in consideration thereof, agreeing that the amount determined' by such sale, should be applied in payment of the rent. The rule of law that an agreement by which one party subjects himself to a charge, or which obliges him to perform an act, is a good consideration for an undertaking on the part of the other, is too well established to require discussion. (Chitty on Cont. 29.)

For these reasons I am of opinion that the direction to the jury was erroneous, and that the verdict should be set aside, and a new trial granted, with costs to abide the event of the action.

Judgment for the plaintiff,  