
    Moses Gutman and Jacob Etterson, Respondents, v. George W. Folsom, as Committee of the Estate of Margaret W. Folsom, a lunatic, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Landlord and tenant — Eights, duties and liabilities in regard to premises—■ Injuries from defective condition — Injuries to tenant’s property — Failure to repair — Notice of defect when required — Waiver of notice.
    Principal and agent — The relation between the parties — Creation and existence — Servant as agent.
    Where, in a lease of a loft in a building, the lessor agrees to make all repairs to the roof, but it is provided that he shall not be liable for damage caused by leakage unless he neglects to repair within a reasonable time after a written notice of such leakage; and where the tenant sues the landlord for damage to his goods from leakage, and it does not appear that any written notice was given as required by the lease, a waiver by the landlord is not established by proof that his bookkeeper and collector waived notice and promised to repair the roof, in the absence of express authority from the landlord to the bookkeeper to waive the provision of the lease requiring written notice to be given.
    Appeal by the defendant from a judgment entered in the City Court of the city of ¡New York, in favor of the plaintiffs, upon the verdict of a jury, and from an order denying a motion for a new trial.
    Baldwin & May (Arthur A. Michell, of counsel), for appellant.
    House, Grossman & Vorhaus (Louis J. Vorhaus and Charles Goldzier, of counsel), for respondents.
   MacLean, J.

For the plain and concise statement requisite, it is alleged that this action is for damages occurring February 5, 1905, by the percolation through the roof of water upon the goods'of the plaintiffs, occupying and having entered into the possession under a lease for one year from the first of February, 1906, of a loft on premises of which the defendant retained the care and possession of the roof, which it was his duty as landlord to keep in repair, but which he negligently and in violation of his duty permitted to become out of repair, and which he, upon being informed by the plaintiffs of the fact of its being out of repair, promised to repair or keep in repair, to the damage and destruction of merchandise permitted by plaintiffs to remain upon the premises in reliance upon the promise and agreement of the defendant. These allegations the plaintiffs hardly made out. They offered no evidence of anything visible to an alert observer to indicate need of precaution. The roof was not shown out of repair in any wise. It had been thoroughly overhauled in the autumn for the winter. It appeared that an extraordinary rainfall in the Sunday night of the fifth to sixth of February raised water upon the roof, covered with snow and ice, above the chimney flashings, which were in good order, something which had not happened in the history of ten years or more of the building, an occurrence not likely to be foreseen or prevented with ordinary care. The information claimed to have been given of something being the matter with the roof was that, on the preceding Friday, the third, one of the plaintiffs said to Mr. Eagan, the defendant’s bookkeeper and collector, that the roof must be repaired or he would get out, and that Eagan promised to repair. For making repairs there was seemingly hardly reasonable opportunity before the storm of Sunday. If the reasonableness of the time or delay under the circumstances was a question for the jury to determine, that determination was prejudiced by the admission of much evidence irrelevant to the issue proffered, by the plaintiffs, such as conduct and occurrences under prior leases; negotiations with Eagan for the subsisting lease; results of talks with Eagan; his superintending installation of a fire sprinkler; consenting to cutting a hole between the fifth and sixth floors; conversations respecting leaks, all during the prior term; errors in admission of evidence sufficient for reversal.

Throughout the trial, however, the chief contention turned upon the effect of a covenant to repair, with a saving proviso running: “ The said lessor agrees to make * * * all repairs to the roof and exterior of said building, but it is understood that the lessor shall not be liable to the said lessee for any damages caused by leakage of the roof, vault lights or skylights, unless the lessor neglects to repair the same within a reasonable time after a written notice of such leakage is delivered to the said lessor.”

This condition, now often stipulated to forefend forced purchases by lessors of goods in lofts, goods claimed to be in rented lofts, it was sought to evade by testimony that the lessor’s bookkeeper and collector, when told of leaks in November and December, 190J, and in January, during the term of a prior leas.e containing the same condition, said he would have it attended to, and that upon béing asked whether it would be necessary to give a written notice he said it was not necessary so long as he was informed of it. There is no question that attention was given to such information, one of the plaintiffs testifying that, every time he was called up, in fact, he sent somebody to look after it. The information notification of attention needed in the mutual interest of the lessor and the lessee may not be confused with the written notice made a condition precedent to casting the defendant in damages. Nor might the statement of the bookkeeper, if he made it, which he denies, be distorted into a waiver of what he had no authority to waive. Nobody’s collector and bookkeeper, nor even be he a general caretaker and factotum, can abrogate a covenant stipulated with his principal, unless the latter has actually given him authority so to do, or by bis own acts have appeared to clothe him with that authority. An employee can not endue himself with authority by his own assertion, or by his acquiescence, or by his conduct.

To fortify his contention that the written notice was waived, the plaintiffs’ counsel cites a passage from the opinion in Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y., 500: “The doctrine of estoppel lays at the foundation of the law, as to waiver. While one party has time and opportunity to comply with a condition precedent, if the other party does or says anything to put him off from his guard, and to induce him to believe that the condition is waived, or that a strict compliance with it will not he insisted on, he is afterwards estopped from claiming nonperformance c-f the condition.” He predicates application of this doctrine upon the statement that it is conceded that there was a waiver of written notice by the course of dealings adopted between the plaintiffs and the defendant’s agents acting under his express authority.” The very contrary appears. Moreover, the doctrine as to waiver so expressed was not concurred in by the brethren on the bench of the learned commissioner who wrote it. P. 506. The decision itself was distinguished and limited later in Harris v. Burdett, 73 N. Y. 136. The doctrine was even restricted in the opinion itself by reference with approval to the true rule ” laid down in Ripley v. Aetna Fire Ins. Co., 30 N. Y. 136. Applicable herein that doctrine might be, only on assuming as facts, although absolutely contradicted, that one of the plaintiffs told Egan on Friday they would move out unless the roof was repaired; that they remained because Egan promised, denied also, to repair and waived a notice in writing, denied again, that there was reasonable opportunity to repair a roof covered with ice and snow before rainfall of Sunday; that Egan, in waiving the covenanted condition precedent to casting his empdoyer in damages, acted within the authorized sphere of authority with which he had been clothed by the plaintiff; and that the waiver was supported by an agreement founded upon a valuable consideration. Waiver-so authorized and supported there was none.

The counsel for the plaintiffs further relies, perhaps relies more, upon a statement in the opinion in Pratt, Hurst & Co. v. Tailer, 114 App. Div. 574, wherein the learned writer, discoursing of a similar provision in a lease, would seemingly have extended to landlords the stringent obligations of common carriers. But the negligence complained of in the case of Pratt, Hurst & Co. v. Tailer, as admitted on demurrer, was a different and affirmative sort, in that the defendants permitted the roof to be occupied for a business calculated to and which did wear the roof and made holes in it, to the knowledge of the defendants, and their agents, and which, as defendants knew, seattered debris upon the roof and, stopping the drain-pipe, caused the water to stand upon the roof and leak through the holes so made. The distinction between such a case as that and the present is expressly recognized’ in the same opinion by the remark: “ The provision exonerating the defendants from liability for any damage caused by leakage of the roof unless they shall neglect to make repairs within a reasonable time after receiving written notice of such defect must be deemed to refer to' defects arising from ordinary wear and tear of the elements and not from those caused by the affirmative acts of the defendants themselves or by negligence on their part.” The covenanted obligation of the defendant to repair was not a covenant of insurance; and, if the plaintiffs would have the benefit of it, they had needs show compliance with its condition precedent. Failing that, their judgment may not stand.

Gildersleeve, J., concurs ; Seabury, J., concurs in result.

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