
    James A. Roosevelt, plaintiff and respondent, vs. Robert Abbatt, defendant and appellant. S. Weir Roosevelt, plaintiff and respondent, vs. Robert Abbatt, defendant and appellant.
    Even if a covenant can be implied in a lease of promises to be used as a “ boarding house,” that when let they are suitable for occupation as a “ boarding house,” such a covenant cannot be extended, by implication, to “ first’class,” or any particular description of boarding house not expressly designated in the lease.
    (Before Babboub, Moneh, and Gabyiit, JJ.)
    Heard March 18, 1864;
    decided April 23, 1864.
    
    Appeals from judgments entered upon the reports of a referee.' The actions were brought upon leases dated March 18th, 1861, made by the plaintiffs as landlords, to the defendant as tenant of two adjoining houses, Nos. 1 and 3 East 20th street, for the rent which remained unpaid up to the time of trial.
    The first defense consisted of allegations that the plaintiffs made false representations, at the time the premises were hired, in answer to an inquiry of the defendant about nuisances in the neighborhood, saying, “ that there were no nuisances or objections of any kind,” whereas there was a marble factory and two stables opposite, and another stable next door; and the second defense consists of allegations that the plaintiffs fraduluently concealed the existence of the stable and factory.
    The two cases depend upon the same facts, and were tried together, before the referee, Hamilton W. Robinson, Esq.
    On the trial it appeared in evidence that in March, 1861, the defendant being desirous of hiring premises in the city of New York, to be kept by his sister, Mrs. Coit, as a boarding house, applied to the plaintiff, James A. Roosevelt, in reference to the renting of the houses and lots Nos. 1 and 3 East Twentieth street; one of which was owned by him, and the other by his brother, S. Weir Roosevelt, for whom he acted as agent. The houses had been' occupied by the Messrs. Roosevelt as family residences for several years previous. On making his application to James A. Roosevelt, the defendant stated to him that he wished to procure suitable premises to be used as a first class boarding house, in a desirable and unexceptionable neighborhood. Before concluding any bargain, the defendant visited the premises, and went into and through such parts of the houses as he chose to examine. He noticed a stable which adjoined one of the houses, and also stables in the rear, and two other stables on the opposite side of Twentieth street, adjoining which he also saw a building covering two lots of ground, which from its exterior indicates that it was used as a marble works, or factory whére marble mantels, statuary, and other articles of marble were manufactured and sold. The front doors of this latter building were then closed, and the defendant’s attention was not then particularly directed to the character of the business which was carried on there, except that there was every external indication of its being a marblé manufactory. This factory contained a large gang saw mill, propelled by steam power, having two or three gangs of from 20 to 30 saws each, for sawing large blocks of marble for customers, as well as for use by the proprietors in the construction of articles finished in their own shop. This saw mill had been with some intermission in operation for several years previous, and when running, was ordinarily in motion through the day time, and sometimes at night, and to midnight. The gangs of saws were within the building, and nearly on the line of the street, and when not going, were concealed from view by wide doors opening outwards. The noise of the saws and machinery when the saw mill was running, was incessant, loud, and disagreeable, and rendered the front rooms of these houses, and particularly of Ho. 3, objectionable to boarders, and in summer, when it' is usual to have the windows open, it prevented persons in the parlor from being heard .when using the ordinary tones of conversation, and rendered it necessary to shut the windows in order to carry on conversation with convenience. At the time the defendant examined the premises with a view of hiring them, the gang saws were not in operation, but work on them was shortly afterwards, resumed, and has continued, with some intermission, ever since.
    The effluvia from the stable pits where the manure was kept was also at times quite offensive, and at times in summer the odor pervaded the halls and parlors of the house; while the defendant was negotiating for the leases, he stated to James A. Roosevelt, that he had intimation that there was some serious objections on account of some particular nuisance or objection in the neighborhood, and was cautioned to look into it before he signed the lease. Mr. ’Roosevelt replied in substance, “ that he knew of none, unless the marble factory opposite and the stable next door could be so considered.” The fact that this reply was made, was testified to by both the plaintiffs; and James A. Roosevelt also swears, that he then informed the defendant, that the reason he and his brother rented the houses so low, was on account of objections to the neighborhood.
    The defendant went into possession, and has since continued to occupy the premises. '
    The referee found as matters of fact, that the defendant had not maintained or proved that the plaintiff's ever made to the defendant any of the representations stated and alleged in his answer, or was guilty of the fraud with which he is therein charged. That said lease, in the pleadings mentioned, was not procured from the defendant by any untrue representation, or fraudulent concealment, as alleged in said answer, or by any other fraudulent means, but was and is a valid instrument. And he found as matter of law, that the plaintiff was entitled to recover from the defendant the sum claimed in the complaint, in each action, together with costs of suit’ and he ordered judgment accordingly, 
    
    The defendant appealed from the judgment.
    
      
      Charles Tracy, for the appellant.
    I. It fully appears by uncontradicted evidence what kind of premises the defendant informed the plaintiff he wanted to lease, and for what purpose, and what the requisites it was necessary they should possess. The premises in question were not tenantable or fit for such purpose, and the defendant has sustained large damage in consequence.
    II. The plaintiff knew that such premises were not tenant-able or fit for such purpose, and the defendant did not know it.
    III. The sign marble mantels was deceptive, the doors were closed, the saws were not going, and there was no reasonable way of detecting or of ascertaining except by inquiry of the plaintiff that there was a marble saw-mill inside, or that the houses were subject to such a noise ; nor was there any reasonable way, other than by inquiry of the plaintiff, of ascertaining as to the heaps of manure, and the offensiveness of the underground stable-pit; and the odor pervaded the front rooms and parlors continually.
    IV. When the defendant had some intimation of some unknown objection to the houses, and had sufficient reasons for knowing that the plaintiff knew all the facts in respect to it, he did all that was required of him, by going directly to the plaintiff and making the inquiry after nuisances. The plaintiff was not justified in allaying his apprehension at this interview, (as Mr. Abbatt testifies he told him he had done,) by only mentioning the lesser matters, the “ hospital for decayed carriages,” &c. and by not mentioning the saw-mill, the noise, the stable-pit, and the odor that pervaded his parlors, &c. Nor did what occurred at the subsequent interview, when Mr. Abbatt inquired as to “ latent defects,” throw any stronger duty on Mr. Abbatt. Mr. Abbatt was still in need of further information to keep him out of difficulty, but the plaintiff was 
      the very person above all others from whom he had a right to demand that information, as he had then specially done already—and he was not (as the referee is of opinion) bound to go to other persons, or to resort to other means. If Mr. Roosevelt had declined to answer any question, then the defendant would have been put on his guard. He answered, but without giving information. He said the houses are in perfect order, and when pertinently asked as to large matters, he mentioned only smaller matters, and so only as to quiet and allay further inquiry. (2 Kent’s Com. 7th ed. 618, &c. Chitty on Cont. 7th ed, 681, &c. Livingston v. Peru. Iron Co., 2 Paige, 390. Nickley v. Thomas, 22 Barb. 652. Haight v. Hayt, 19 N. Y. Rep. 464.)
    V. The premises having been rented for a specific purpose, there is an implied covenant that they were fit for such purpose ; and as the defendant has clearly proved they were not, and has proved damage in consequence thereof, the judgment should be set aside, with costs, and a new trial ordered. (La Farge v. Mansfield, 31 Barb. 345. Chitty on Cont. 7th Amer. ed. 449 to 452. Westlake v. De Graw, 25 Wend. 669. 
      Allaire v. Whitney, 1 Hill, 484. S. C. 4 Denio, 534. The Mayor, &c. v. Mabie 13 N. Y. Rep. 151.)
    
      S. W. & R. B. Roosevelt, for the respondents.
    I. The only question involved in this case is a question of fact about which there is conflicting testimony, and which has been determined in favor of the plaintiff by the referee, whose finding is conclusive. (Monell v. Marshall, 25 How. 425. Arnoux v. Homans, id. 427.)
    II. The defendant’s testimony, as to the representations, was the statement of a conversation—a-kind of proof which the court looks upon with disfavor, and is against every principle of probability. Several witnesses testify, that if they had been informed, as he swore he was, that there was a manufactory near the premises, they would at once have recognized the marble factory as the one referred to. In June, when he calls upon Mr. Roosevelt to ask for a reduced rent, he does not claim it as a right on account of the pretended imposition, nor utter a single reproach, although the plaintiff cooly admits that he always knew the factory was objectionable—an admission hardly conceivable under the defendant’s view of the previous statements. No sane man could have said to a person who had examined the premises and its surroundings, and seen that every neighboring building but one was a stable or factory, “ that there were no objections of any kind.” James A. Roosevelt denies in every particular that he made the representations alleged, but states, on the other hand, that he expressly mentioned the objections complained of, in which he is sustained by S. Weir Roosevelt, who contradicts the defendant directly, and who overheard part of a conversation when the words “latent defects” in the lease were discussed. Moreover, the building was so manifestly a factory that no one could be mistaken about it, and so the referee states in his opinion.
    III. If the fact were otherwise, and the representations had been made, they were merely expressions of opinion, as the defendant did not rely upon them, but examined for himself; 
      in which case the rule of caveat emptor applies. (Hutchinson v. Brown, Clarke, 408. Hargous v. Stone, 5 N. Y. Rep. 73. Van Allen v. Allen, 1 Hilt. 524. Schuyler v. Russ, 2 Caines, 202.)
    IY. The rule as to representations, is no stronger when applied to real than to personal property, and as to the latter, it is well settled that the party must he in a position that he can not examine the property, and must rely wholly on the representations. In this case, although the gangs were not running, the mill was being worked and open to inspection when the premises were examined. (Bronson v. Wiman, 4 Seld. 182.)
    V. The proof offered by the defendant of the nature of the houses, as compared with the rent, was properly excluded, as no warranty can be implied from the amount of rent. (Wright v. Hart, 18 Wend. 449.),
    VI. A person is only liable for the concealment of facts, when he is under some duty or obligation to state them, as where a relation of trust exists between the parties. (Gale v. Gale, 19 Barb. 249. Livingston v. Peru Iron Co., 2 Paige, 390.)
    
      
       The following opinion was delivered by the referee:
      “ These actions are brought to recover rent reserved in two leases. The defense set up is that the contract was void, by reason- of alleged fraudulent representations, or concealment of the objectionable surroundings to the premises, and claim is also made for damages, on account of the loss of boarders, who were driven from the premises, or deterred from taking board there, on account of these annoyances.
      If the defendant has established his defense, he is entitled to a judgment, by way of recoupment for his damages; but having retained possession, it does not constitute an absolute bar to a recovery. ( Whitney v. Allaire, 1 N. Y. Rep. 305.)
      So far as the means of conducting a first class boarding house on these premises was affected by the fact that they were surrounded by stables, and the marble factory on the opposite side of the street, and that annoyances were occasioned by the effluvia from the stables, or by the cartg or trucks frequenting the marble works, or by the ordinary noise of marble works, arising from the operation of cutting, sawing, dressing and polishing marble, I apprehend the defendant cannot claim he has any cause of complaint. The purposes for which these places were used, and- such material and ordinary noise and inconvenience as resulted from such use, were disclosed to him when he became aware either from information or from his own observation, of the existence of the stables and marble works in such proximity to the premises.
      His counsel scarcely contends that he can be regarded as ignorant of, or to any extent imposed upon by any want of knowledge of, these particulars, but claims that even if his attention was directed to the general sources out of which they arose, yet as the character and extent of the noise consequent upon the operation of the gang saws were well known to tlqe plaintiffs while they occupied the premises, and the annoyance occasioned to the occupants being shown to be so great as to destroy their comfort, and drive away or deter boarders, its effect upon the business contemplated by the defendant must also have been so well known to the plaintiffs, and their failure to mention it, in answer to his inquiry . as to nuisances or objections affecting ftis parrying on a first class boarding house, was a fraudulent concealment; that from the character of the response, that they “ knew of no nuisance, objection, or latent defects, unless the stable and marble works were to be so considered,” it was calculated to conceal the real state of the ease, and was intended to, and did throw him off his guard and quiet his apprehensions upon that subject; that being apprized of his solicitude to ascertain every circumstance affecting the object he had in view, the plaintiffs were boiifid to respond fully, and disclose every particular within their knowledge, which might be unfavorable to its success, and the rule caveat cmptw did not relieve ,them from the consequences of their opiission to give him full and precise information.
      The defense is founded upon a charge of false representations; and assuming that any concealment of a material fact may be available, under the proceedings, I must find, as matter of fact, that neither charge is sustained.
      The representations which the defendant testifies were made to him by James A. Roosevelt, are expressly denied by the latter, and regarding Mr. Roosevelt (as I must, in the absence of any impeachment or discredit, except such as arises from the contradictory statement of the defendant,) as equally credible, I cannot but find the charge as unsustained by proof.
      Mr. Roosevelt, in his explanation of the circumstances of the negotiation, testifies that he informed the defendant “ that the reason why he and his brother (the other plaintiff) rented the premises so low, was on account of objections to the neighborhood.” This was, in itself, such a caveat or notice to put the defendant upon inquiry, as the most scrupulous regard for fair dealing could have exacted.
      But without spch express caution, the statement (as sworn to by both plaintiffs,) made to the defendant, “ that the only objections or latent defects they knew of, consisted of the stable next door, and the marble factory opposite, “ fully acquits the plaintiffs of all responsibility for the matters of which the defendant now makes complaint against them. It fully directed his attention to the sources from which any question of the entire availability of the premises for the purposes for which he desired to hire them might arise, and ought to have put him upon his guard in respect to them.
      If, in his personal examination of the premises, he had failed to discover these stables, or the marble factory, the notice given him charged him with the duty of fully investigating and considering all the ordinary and natural results of the presence of those stables, the odors that must necessarily arise from them, and the confusion and noise that might be expected to be created in the operations of a marble factory.
      I am unable to perceive, either from the terms of that disclosure, or the manner in which it was made, any grounds for imputing to the plaintiffs any simulated fairness, or any intention to deceive the defendant.
      The alleged annoyances were not (so far as shown) injurious to the health of the occupants of the demised premises; nor were the plaintiffs in any way responsible for their existence or continuance.
      The degree to which the noise from the saw mill exceeded what might be .expected to result from the operation of an extensive marble factory, it would be very difficult to estimate; the limit of the quiet endurance of the multifarious annoyances incident to the business operations of a large city, varies with the sensitiveness or fancy of each individual, and while it is probable the business of a boarding house would be particularly affected by much slighter causes than any other, still it would be exacting much more than the law requires, to hold the plaintiffs chargeable with a consciousness of these fanciful distinctions, or with knowledge of the extent to which a class of boarders capable of enduring the neighborhood of stables, and the smells arising from them, or the noise of the ordinary operations of a marble factory, or the much greater noise arising from the ordinary rumbling of carts and vehicles in the streets, would yet take exception to the continuous grating and noise of a gang of saws operating upon blocks of marble.
      Fraud is not to be inferred, nor held established, except upon clear evidence of falsehood or intention to deceive; and having found the defendant chargeable with notice of all the ordinary and natural annoyances resulting from these premises being surrounded by stables, and having a marble factory opposite, I can perceive nothing in the testimony from which I could find that there was any thing so unusual in the particular character of these surroundings, or any other such especial difference from other places and works of that general description, so open to ordinary observation, as might be presumed to be peculiarly within the knowledge of the' plaintiffs, which, under the circumstances of this case, called upon them to make any more full or detailed disclosure.
      I am of the opinion that no fraudulent representations, concealment or artifice on the part of the plaintiffs, has been established, and that they are entitled to the judgment demanded.”
    
   By the Court,

Barbour, J.

In these two cases, heard together on appeal, the referee has found as .matters of fact, that the defendant has not maintained or proved that the plaintiff ever made to the defendant any of the representations stated and alleged in his answer, or was guilty of the fraud therein charged ; that said lease, in the pleadings mentioned, was not procured from the defendant by any untrue representation or fraudulent concealment, as. alleged in said answer, or any other fraudulent means, but was and is a valid instrument and upon a very careful examination of all the testimony, I am satisfied that the evidence was fully sufficient to-justify the findings of the referee in this regard.

Conceding that there is an implied covenant in the lease that the premises when let, were fit and suitable for occupation as boarding houses, such covenant cannot be so extended by implication as to cover first class, or any particular description of boarding houses not expressly designated in the lease.

The judgment should be affirmed, with costs.  