
    Rudolph Louis Blumenthal and Others, Doing Business under the Firm Name and Style of Manhattan Mills, Respondents, v. Amos L. Prescott and C. Oscar Littlefield, Appellants.
    
      fandlord and tenant—injury to goods from a roof being insufficiently protected ' while being repaired after a fire—right of a sub-lessee to recover from his lessor, although the repairs are made by the owner of the building — agency — measure of damages.
    
    The Le Conte estate demised certain premises to the firm of Prescott & Co. by a lease, which contained the following clause:
    “ Said, parties of the second part further covenant that they will not assign . this lease nor make any alteration in said premises without the written consent of the said parties of the first part under the penalty of forfeiture and damages.”
    
      " And it is further agreed between the parties to these presents that in case the building of buildings erected on the premises hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible at the expense of the said parties of the first part.”
    
      “And it is further understood and agreed that all repairs that may become necessary to or about said building, steam engine and elevators, during the term hereby granted (except repairs to the roof), shall be made and paid for by the said parties of the second part. ”
    Prescott & Co. subsequently sub-let the premises to a firm known as the Manhattan Mills, the sub-lease also containing the provisions above quoted. The course of dealing between the Manhattan Mills and Prescott & Co. was such that when occasion arose for repairs, which the landlord was bound to make, the Manhattan Mills were referred to E. H. Ludlow & Co., who were the agents of the Le Conte estate, and the repairs were then made through the agency of Ludlow & Co. The communications between the Manhattan Mills and Prescott & Co. were through an employee of the latter firm, named Miller.
    During the term of the sub-lease a fire occurred upon the premises, which burned a large hole in the roof. Neither of the members of the firm of Prescott & Co. was within the State of New "York at the time the fire occurred, and the Manhattan Mills, as claimed by them, gave personal notice of the fire to Miller, who represented Prescott & Co. in their absence. They also gave notice of the fire to Ludlow & Co., and the latter undertook to make the necessary repairs, employing a contractor for that purpose. The contractor began his work on Friday, and on Saturday left the roof in an unfinished condition, and without taking proper precautions to cover the hole therein. Eain storms occurred on the following Sunday and Monday, and goods belonging to the Manhattan Mills were damaged in consequence thereof.
    In an action brought by the Manhattan Mills against Prescott & Co. to recover for the damage thus done to the goods, it was
    
      Held, that, as it appeared that the defendants had constituted Ludlow & Co. their representative for the purpose of carrying out the obligations of their lease to the plaintiffs, and Ludlow & Co. had undertaken to make the repairs through the medium of a contractor, it was immaterial whether, upon a strict interpretation of the covenants of the lease, it was the duty of the plaintiffs to repair at the defendants’ expense, or whether it was the duty of the defendants to make the repairs in the first instance;
    That the "defendants had created a privity between themselves and the person who made the repairs, when they referred the plaintiffs to Ludlow & Co. as agents of the Le Conte estate;
    That the defendants were liable for any negligence on the part of the contractor employed by the Le Conte estate;
    That, the injury to the building being susceptible of quick and easy reparation, and the contractor having been negligent, the plaintiffs were entitled to recover the damages for the injury done to their goods, and not simply the difference between the rental value of the.premises as they were and their rental value as they would have been if repaired in accordance with the landlord’s covenant.
    Appeal by the defendants, Amos L. Prescott and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 21st day of October, 1901, upon the report of a referee.
    
      Herbert J. Hindes, for the appellants.
    
      John Bogart, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover from the defendants damages for injuries to goods, the property of the plaintiffs, claimed to have been caused by the negligence of the defendants, who were their landlords. In June, 189.6, Harriett G. Le Conte, as trustee, etc., and Robert G. Le Conte, parties of the first part, executed a lease of the premises Ho. 11 Jay. street, in the city of Hew York, to the defendants, composing the firm of J. L. Prescott & Co., parties of the second part. The said lease, amongst other things, contained the following clauses:

Said parties of the second part further covenant that they will not assign this lease nor make any alteration in said premises without the written consent of the said parties of the first part under the penalty of forfeiture and damages.”
“ And it is further agreed between the parties to these presents that in case the building or buildings erected on the premises hereby leased shall be partially damaged by fire, the samé shall be repaired as speedily as possible at the expense of the said parties of the first part.”
And.it is further understood and agreed that all repairs that may become necessary to or about said building, steam engine and elevators during the term hereby granted (except repairs to the roof), shall be made and paid for by the said parties of the second part.”

On the 9th day of December, 1898, the defendants leased said ■ premises to the plaintiffs for the period of five years and four months, commencing January 1, 1899, the said lease also containing the provisions above quoted. On the 3d day of August, 1900, a fire took place on the premises, which was limited to the rear of the building, burning a large hole in the roof. From about August third up to Friday, August tenth, the fire department had charge of that portion of the demised premises which was injured by the fire and kept the roof covered. Upon the last-mentioned day one Scherer, a contractor, and his men undertook to make repairs to the roof. Before such repairs were completed, and while the premises remained open, rainstorms occurred on Sunday and Monday, August twelfth and thirteenth, causing damage to the plaintiffs’ goods. The claim is that Scherer and his workmen left the roof on Saturday, August eleventh, in an unfinished condition, and without taking any proper precaution to protect it from rain, and it is to recover for the alleged damage to the goods of the plaintiffs that this action is brought.

It is claimed upon the part of the defendants that no liability attached to them for the damage sustained by the plaintiffs, because:

First. The defendants were not absolutely bound to repair.
Second. The plaintiffs failed to give notice to the defendants of the damage to the roof and to repair.
Third. It was the duty of the plaintiffs to repair at the defendants’ expense or move out of the premises if the defendants failed to repair agreeably to their covenant.
Fourth. There was no privity between the defendants and the person who made the repairs.
Fifth. The repairs were not negligently done.
And, sixth, the. plaintiffs were guilty of contributory negligence.

The referee has found, and we think that there was - evidence sufficient to justify the finding, that the course of dealing between the defendants and the plaintiffs had been that, when occasion arose for repairs which the landlords were liable to make, the plaintiffs had been referred to E. H. Ludlow & Go., who were the agents of the Le Conte estate, and that such repairs were then made through the agency of Ludlow & Go., and that the communications had by the plaintiffs with the defendants were principally through an employee of the defendants of the name of Miller, who, the referee found, represented the defendants in their absence.

It further appears that at the time of the occurrences in question neither of the defendants was in the city of Hew York, or the State of Hew York, one of them being in the Yellowstone Park and the other in the State of Maine. Under these circumstances, it was, of course, impossible for the plaintiffs to give notice of the occurrence of the fire to the defendants personally. There is evidence that personal notice was given .to Miller of the fire. It is true that he denies it; but that he was aware of the happening of the fire is apparent from .the fact of his having received a letter addressed to J. L. Prescott & Co. from E. II. Ludlow & Co., which he had opened and read, and then forwarded to the plaintiffs.

It further appeared that Ludlow & Co., in pursuance of the practice which had been suggested by the defendants, were notified of the fire, and, in accordance with the obligations of the lease, they undertook to make the repairs.

It seems to us, therefore, that the first objection is clearly not ■ well taken, because the plaintiffs did everything which it was incumbent upon them to do in order to give the defendants notice of the fire, so that the proper repairs might be made. Miller, who was the representative of the defendants, certainly in their absence, had notice of the fire-; and Ludlow & Co., the-parties to whom the plaintiffs were referred whenever there was a question of repairs to be done under the lease by the landlords, also had notice. And farther, Ludlow & Go. undertook to perform the duty of making these repairs, admitting themselves obligated so to .do by the terms of the lease .to the defendants. Under these circumstances, it is apparent that the defendants had constituted Ludlow & Co. their representatives for the purpose of carrying Out the obligations of their lease to the plaintiffs; and they having undertaken to do these repairs in this manner, it is entirely immaterial, so far as this case is concerned,, whether upon a strict interpretation of the covenants in the -lease it was tha duty of .the plaintiffs to repair at the defendants’ expense, or whether it was the duty of the defendants to make the repairs in the first instance. This also makes immaterial the objection that there was no' privity between the defendants and the person who made the repairs. The defendants had •created such privity when, they referred the plaintiffs to Ludlow & ■Co., as agents of the Le Conte estate in reference to the subject of repairs to' be made under the clause. It is,' of course, readily to be understood why this reference was made. While the defendants were bound to make certain repairs for the.plaintiffs, the Le Conte éstate was bound to make the repairs for the .defendants; and thus, in order to avoid the necessity of their com■jnunicating with Ludlow & Co., the defendants instructed the plaintiffs to do so directly; and, the plaintiffs having acted upon this instruction, it is too late now for the defendants to claim that there was no privity between themselves and the contractor employed by the Le Conte estate to make the repairs. They handed over this business to the Le Conte estate, and the estate consented, and in so doing, so far as the plaintiffs were concerned, Ludlow & Co. were acting as the agents of the defendants, and the defendants were liable for whatever the estate did in the carrying out of the defendants’ contract with the plaintiffs. Of course, this whole position depends upon the fact that this reference was made, and that the defendants had held out Miller as being authorized to act for them in respect to this matter. We do not see how the referee could come to any other conclusion than that Miller was the representative of the defendants, as we have already said, certainly during: their absence from the State. This being the case, the question of an independent contractor in no way enters into the discussion. • The defendants, if not bound in the first instance, assumed, by their representative the Le Conte estate, to make repairs. If they did so, they were bound to make them with diligence and care. They could choose their own method of doing the work. They could do it themselves, or they could make a contract with others to do it. But whichever method they adopted, the doing of the work was their act. They were simply fulfilling their contractual obligations to the plaintiffs, who had no interest in the manner of its being done, or by whom. The case is absolutely different from one in which a claim is made by a stranger for damage caused by negligence in the performance of work.

It is also claimed that the plaintiffs were guilty of contributory negligence, in that, knowing that their merchandise was exposed to-damage or injury from storms, they left it to this hazard, and, therefore, they cannot recover from any . one, not even the owner of the property, who made the repairs; and our attention is called to various cases where the landlord was under a covenant to repair, and it was held that where, the landlord having failed to comply with his covenant to repair, the tenant leaves his goods subject to the action of the weather, he cannot recover for the damages sustained in consequence of a storm. But those cases have no application to the one at bar. Here the landlords, representing the defendants, were in the act of performing their covénaiits, and were ■making the repairs, and it was in consequence of the negligent manner in which the work was conducted that the injury occurred. It is true that the proof shows that the plaintiffs knew that this roof was not secured as it should, have been when the contractor quitted work on the Saturday preceding the Sunday and Monday when it .rained; but the plaintiffs had no reason to suppose that when the ¡storm came up the contractor would not take means to protect the roof which he knew he had left open. It is entirely different from a case where the tenant knew that his landlord was not going to perform his covenant and he deliberately allowed his goods to be destroyed The whole difficúlty in the case was that the carpenters -•did not'get their work done. The evidence shows that the man who was to put on the tar roof and make the roof watertight was «there ready to do the work and would have completed it on Saturday had the carpenters had their part of the work in condition.

It is further claimed on the part of the defendants that the repairs were not negligently done. The point needs no discussion ; the circumstances attending the making of the repairs speak loudly enough to answer this proposition.

The claim made by the defendants, that the rule of damages adopted by the referee was an improper one, and that he should have allowed only the difference between the rental value of the premises as they were and their rental value as they would have been if repaired in accordance with the landlords’ covenant, is •clearly untenable. The plaintiffs were not bound to abandon the lease because of the damage to the building which occurred. It was susceptible of quick and easy reparation. It was the duty of •the defendants to make the repairs in a manner which would protect the plaintiffs from loss; and if that work was so negligently carried out that the plaintiffs’goods were damaged by water, there is no reason why they should not be allowed to recover the damages they have sustained.

The judgment must be affirmed, with costs.

Patterson, O’Brien and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  