
    ANDERSON FOWLER, Respondent, v. JOEL O. STEVENS, Appellant.
    Lease.— Warranty that premises are habitable, when not to be deemed warranty that they will so continue.
    
    Before Freedman and Russell, JJ.
    
      Decided December 30, 1882.
    Exceptions ordered to be heard in the first instance at. the General Term, upon the direction of a verdict for the plaintiff.
    The action was for the recovery of rent, the answer alleged breach of the plaintiff’s warranty that the premises should be fit for habitation as a tenement for the defendant and his family; and counter-claimed for moneys alleged to have been expended by reason of sickness to the defendant and his family, incurred from the uninhabitable condition of the house. The defendant testified that in the spring of 1875, before he leased the house, he inquired of the plaintiff about it, and that the plaintiff said “it was a new house in perfect order and in every way in a habitable condition and that relying upon that statement he took it. The defendant’s evidence tended to show that in the latter part of the summer, he having gone into occupation of the house on the 1st of May, 1875, foul smells became very perceptible, and his wife was taken very ill, and that whenever there was a rain storm of any duration, the water would rise within three or four feet of the furnace with the register almost red hot, and that the walls of the rooms of the house were dripping with water. By another witness he showed that this house was built- upon made ground where there had formerly been a pond. A physician testified that the defendant’s illness and that of his wife, was •due to their living in this house.
    The court at General Term said, “The general proposition that the parol statement by the plaintiff or his agent that the house was ‘a new one in perfect order and in every way in a habitable condition’ amounted to a warranty, or -enough to permit a jury to find a warranty, may be conceded without disturbing the judgment in this case. It cannot be claimed that the warranty extended beyond the •condition of the house at the time of letting. It was not a warranty, as claimed in the complaint, that the house would continue habitable. All the evidence as to the uninhabitable condition of the house relates to a period long subsequent to the letting. Granting that the house was ■erected upon made land where a pond had formerly been, it does not appear that that fact, or any other, made it uninhabitable at the time the defendant went into possession. Nor does it appear with clearness that that fact can be .assigned as the reason why rlie premises became uninhabitable afterwards. That is to -say, the evidence does not exclude other causes for the effects shown. We are, therefore, of opinion that the defense and counter-claim was not sustained by the evidence and was properly dismissed.”
    
      A Kling, for appellants.
    
      W. F. McRae, for respondent.
   Opinion by Russell, J.; Freedman, J., concurred.

Exceptions overruled, judgment affirmed, with costs.  