
    STAPENHORST against THE AMERICAN MANUFACTURING COMPANY.
    
      New York Superior Court;
    
    
      General Term, Nov., 1873.
    Negligence.—Landlord and Tenant.—Question for the Jury.—Damages.—Pleading.
    An action lies by a tenant of a part of a building against his landlord, who occupies other parts, to recover damages for negligence in allowing injurious substances to leak through from defendant’s rooms into - plaintiff’s rooms; and the principle that, as between landlord and tenant, the landlord is not bound to keep in repair, without express contra'ct, does not avail as a defense, if negligence be shown.
    
      In such an action, loss of custom by plaintiff, in consequence of the latent injuries sustained by goods manufactured by him on the premises, is not admissible unless alleged in the complaint as special • damages. Even gross or reckless negligence does not entitle the plaintiff to have the jury consider the injury done to the business, or the good will thereof, in estimating the damages.
    Appeal from judgment entered upon the verdict of a jury, in favor of the plaintiffs, for one thousand seven hundred and fifty-nine dollars and fifty-nine cents. The facts appear in the opinion.
    
      William Henry Arnoux, for appellant.
    
      Moody B. Smith, for respondents.
   By the Court.—Freedman, J.

The complaint alleged that the defendant let and rented to plaintiffs the first floor and basement of certain premises situated on the corner of Mott and Hester-streets, in the city of Hew York; that the plaintiffs occupied the demised premises for the manufacture of French and German mustard ; that during the same time the defendant occupied the upper stories of said .premises for manufacturing umbrella frames; that from May 1,1868, to June, 1869, oil impregnated with iron filings or particles of iron finely pulverized, leaked, by reason of the negligence, of the defendant, through from defendant’s premises into plaintiff’s mustard mills; that in consequence thereof, great damage has been done to plaintiff’s business ; that a great deal of their mustard has been ruined thereby; that the character and reputation of their manufactured mustard has been ruined, and that their business has been greatly injured thereby; that the plaintiffs have been damaged in the premises, in the sum of twenty-five thousand dollars, and that said .damage has been done without any negligence on the part of the plaintiffs.

The gravamen, of the charge, therefore, was negligence on the part of the defendant in carrying on its business operations in that part of the premises occupied for that purpose.

Such negligence is not a positive element; but it consisted, if it existed, in a mere omission to do something which the law required under the circumstances, or, in other words, in a want of diligence without positive intention to injure the plaintiffs. The law required that in carrying out- its operations, the defendant should use due diligence to prevent injury to the plaintiffs, that is to say, the defendant was bound to use the same amount of care, caution, attention, and discretion as the ordinary prudent man would put forth under precisely the same circumstances. The plaintiffs were bound to use similar diligence to guard against injury. The want or omission on either side of such care, caution, attention, or discretion, constituted negligence. Thus the duty of such diligence, and consequently the measure of negligence was relative on both sides, that is, relative to the actual situation of affairs, and the means of knowledge of the parties. These questions, therefore, had to be determined upon all the circumstances of the case, of which the relation of landlord and tenant was but one, and a comparatively unimportant ' one; and "in determining them, it became necessary for the learned judge below, and for the jury, if the case was rightfully sent to them, to place them- - selves in the position of the persons whose acts had 'to be judged. The evidence given upon the trial, when considered in the light of these principles, was not of such a character as would have authorized the court to determine the diligence or negligence of either side as ’matter of law, and, consequently, the questions relating thereto on both sides had to be submitted to the jury as questions of fact. For this reason, defendant’s exception to the refusal of the court to dismiss the complaint is clearly untenable. The case could not be disposed of on the simple theory that, as between landlord and tenant, the landlord is not bound to repair without express covenant

A more serious question is presented by the exceptions relating to the reception of certain evidence and to certain portions of the charge that bear upon the question of damages. Evidence had been given that plaintiff’s business extended to the principal cities of the United States, and of the manner in which it was conducted; that in March, or April, 1869, mustard commenced to be returned by plaintiff’ s customers on the ground of its bad quality, and that in the course of some further time, all the mustard manufactured between January 1, and the month of June, 1869, was thus returned ; that on investigation the said mustard was found to be utterly worthless, and that it had to be thrown away; that thereupon numerous attempts were made by plaintiffs to discover the cause, and that for that purpose, and at great expense, the mills were frequently stopped, cleaned up and thoroughly inspected, and chemical analyses were made of the mustard, and of the materials that entered into its manufacture ; and that finally it was discovered that oil impregnated with iron was leaking from defendant’s premises into plaintiff s mustard mills, and to all appearances, had been thus leaking for some time, and that this had worked the injury.

Evidence had also been given of the quantity of mustard thus lost, of its market value in a sound condition, and of the expenses incurred by plaintiffs in discovering the cause of the difficulty, and in obviating the injurious effects produced. Then it happened that Julius Wolff, one of the plaintiffs, on'being recalled, was allowed to testify against defendant’s objection and exception, that from the first of January to the first of June, of the preceding year, plaintiffs had about two hundred customers, from which they realized a profit of not less than one thousand dollars per month, and which subsequently were all lost. This ruling was erroneous for several reasons. The complaint did not allege the names of said customers. It did not even contain an averment of loss of customers as an item of special damage, in general terms. No such loss could therefore be proven (Hallock v. Miller, 2 Barb., 630 ; Tobias v. Harland, 4 Wend., 537). The evidence already given showed affirmatively that no damage had occurred prior to 1869, and consequently, the testimony objected to related to a period too remote in any aspect of the case. For the damage complained of not being the result of intention, but of negligence, the law holds the defendant responsible only for such results as spring naturally,—i. e., according to the usual course of things, from defendant’s negligent acts, unaffected by extraneous causes. Upon any such result the said testimony had no legitimate bearing, and that it may have prejudiced the defendant, becomes apparent, when it is considered in connection with the charge. The jury were instructed that in case they found that the negligence of the defendant was not occasional, but general and continuous,—in the language of the law, gross,— they should, in addition to the market value of the goods actually spoiled, and the interest thereon, find from the evidence what damage was done to the business of the plaintiffs, and should also give them compensation for the loss of time and for the trouble that they were put to. Plaintiffs’ counsel requested the court to charge further, that if the defendant was guilty of gross, or of reckless negligence, it is liable for the injury to the good will of plaintiffs’ business. This proposition the court submitted to the jury by saying : “ I charge you that in effect, except I prefer not to use the words ‘good will of the business,’ but to say the damage done to the business, as it has been given in evidence before you.” This was equivalent to sayihg that the jury had a right to consider the testimony objected to in determining the aggregate amount of damage.

The error committed in the reception of said testimony cannot, therefore, be disregarded, and this being so, it is unnecessary to express an opinion on the questions raised by the remaining exceptions.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Barbour, Ch. J., and Monell, J., concurred.  