
    ARTHUR T. WHITE, Plaintiff and Appellant, v. LEWIS MEALIO, et al., Defendants and Respondents.
    A lease that provides that the landlord may at reasonable hours in the daytime enter the premises, to examine or to make such repairs and alterations therein as shall be necessary for the preservation thereof, or of the building, gives a clear right and authority (in case the excavation of the adjoining property threatens injury or destruction to the building or premises leased), to enter the premises and shore-up and strengthen the same, by running large pieces of timber known as “ needles ” through the basement to support the floor of the store occupied by the tenants.
    And in such case the landlord is not liable in damages to the tenant, for an interruption to business, &c., unless it appears that the work was done hi an unskillful and negligent manner (Turner v. McCarthy, 4 B. D. Smith, 247).
    A landlord is under no obligation to repair or protect a tenant from the consequences of the lawful acts of the owners of adjoining buildings, unless he has covenanted so to do; nor does the act of 1855, ch. 6, create any such delivery (Howard r. Doolittle, 3 Duerr, 464; Sherwood ®. Seamen, 2 JBosw. 127).
    Before Freedman, Curtis, and Speir, JJ.
    
      Decided January 31, 1874.
    Upon a judgment for dismissal of the complaint, exceptions ordered to be heard at the general term in the first instance. The facts and exceptions in the case appear fully in the opinion of the court.
    
      George Carpenter, for appellant, argued:—I.
    The plaintiff proved a good cause of action against .defendants, and the court clearly erred in dismissing the complaint.
    II». The clause in the lease, that the tenant (the plaintiff, “will uermit the landlord or his agent to enter the premises at reasonable hours in the daytime, to make such repairs and alterations therein as shall be necessary for the preservation thereof, or of the building,” referred only to ordinary repairs or alterations, and cannot fairly be construed so as to entitle the landlord to occupy the demised premises for any length of time he may deem proper. The clause itself shows that the tenant was not to be deprived of his premises, for the landlord was only to have the right to “ enter at reasonable hours in the daytime, to make such repairs or alterations as shall be necessary.” The evidence of the plaintiff shows that the defendants had the almost exclusive use of his basement, for which they compelled him to pay rent for eight weeks, and that for the purpose of bracing up their store floor. There is no pretense in the answer or on the part of the defendants that they claimed the right, or placed said “needles” in plaintiff’s premises under or by virtue of said clause in said lease; on the contrary, it would appear that they well understood that they had no such right, and bargained with plaintiff for the privilege.
    III. The defendants did not prove, or attempt to prove, that it had become necessary to make any alterations or repairs in order to preserve the building, or that in order to make such alterations or repairs, it was necessary to enter the plaintiff’s premises at all. It would seem that the “needles” were put in plaintiff’s portion to suit the defendants’ own convenience.
    IY. Even if the defendants had the right to enter the plaintiff ’ s premises, they only had such right at reasonable hours in the daytime, and only then when it was necessary to make repairs and alterations. The plaintiff disputed that it was necessary, and refused to allow the premises to be occupied with the “needles.” The defendants then, in consideration that the plaintiff would consent and allow the beams or needles to come in for the time they wished, made the agreement referred to. The consent of the plaintiff, and the withdrawal of his opposition, and the stipulation in regard to the time the needles might remain, and his peaceable consent that his business might be interfered with, and the whole of his basement virtually occupied with the meedles, was an abundant consideration for the agreement proven.
    V. Even if it was necessary, and the defendants had the right to enter the premises under the clause in the lease (which is denied), they clearly waived it by entering into the new agreement with plaintiff.
    
      Joseph 8. Bosworth, for respondent, argued:—
    I. There is no proof that the defendants caused the work to be done, and the objection was made at the trial, partly based on the absence of such proof (Clare v. National City Bank, 14 Abb. Pr. N. S. 326).
    II. Even if it had been so shown, the contractor would alone be liable for the trespass, if any had been committed (Blake v. Ferris, 5 N. Y. [1 Seld.] 48 ; Pack v. Mayor, &c., 8 Id. [4 Seld.] 222 ; Kelly v. Mayor, &c., 11 Id. [1 Kern.] 432). The relation of master and servant did not exist between the workmen and the defendants, who appear to have given them license (Benedict v. Martin, 36 Barb. 288).
    III. A landlord, in the absence of an express covenant, is under no obligation to repair, or to protect his tenant from the consequences of the lawful acts of the owners of adjoining premises, in excavating them to such depth as would endanger the stability of the demised premises. Laws of 1855, ch. 6, has not created any such liability (Sherwood v. Seaman, 2 Bosw. 127).
    IV. The letting implied no obligation by landlord that the premises shall be, or continue to be, fit for the use for which the tenant designed them, or even that they are or shall be teriantable (Doupe v. Grennin, 37 
      How. Pr. 5; Cleves v. Willoughby, 7 Hill, 90; Witty to. Matthews, Abb. Law Jour. [Nov. 22, 1873, p. 329], Court of Appeals).
    V. If the work had been even done by order of the landlord, yet where the lease reserves to the lessor the right to enter to make repairs, he is not liable in damages for interrupting the business of the lessee or otherwise, in the exercise of such right, unless it is shown that it was done in a wanton, unskillful, or negligent manner (Turner v. McCarthy, 4 E. D. Smith, 247).
   Br the Court.—Speir, J.

The plaintiff occupied the rear part of the basement with entrance on Canal-street, of building No. 416 Broadway, N. Y., as a paint shop, under a lease from the defendants, for one year from May 1, 1866.

The building was shored up in February, 1867, on account of an excavation made on the adjoining lot, No. 414 Broadway. The plaintiff claims that the beneficial use of the basement was impaired by the shoring, and claims damage for the excess of time during which the wooden needles remained, beyond that which he consented to. The defendants did not own the demised premises, but were themselves tenants. The lease to plaintiff authorized defendants to repair, alter,

. and preserve the building.

On motion of defendants’ counsel, the judge dismissed the complaint. Exceptions to be heard in the first instance at general term.

The lease to the plaintiff authorized the defendant or his agent to enter the premises to examine, or to make such repairs and alterations thereon as shall be necessary for the preservation thereof.

Under the covenant contained in the lease, the defendant had a clear right to enter the premises in case the excavation of the adjoining property threatened either their injury or destruction, and in the exercise of this right he is not liable in damages for interrupting the business oE the lessee or otherwise, unless it be shown that it was done in a wanton, unskillful, or negligent manner (Turner v. McCarthy, 4 E. D. Smith, 247). There was no evidence showing that the defendants or their agents made the repairs in so unskillful and negligent a manner as’ to subject the plaintiff unnecessarily to loss and damage. On the contrary, it is apparent from the testimony, that what was done was necessary for the safety of the building, that the insertion of the needles was a proper and precautionary measure to prop up the building while the excavation was going on in the adjoining premises.

The landlord was under no obligation to repair or protect his tenant from the consequences of the lawful acts of the owners of the adjoining premises in excavating them to such depth as would endanger the stability of the demised premises. Such liability can only be created by express covenant to that effect (Howard v. Doolittle, 3 Duer. 464 ; Sherwood v. Seaman, 2 Bosw. 127). Nor does the act of 1855, ch. 6, create any such liability.

Nor is there any obligation resting on the landlord, implied by the lease, that the premises shall be or continue to be fit for the use for which the tenant designed them ; or even that they are or shall be tenantable. In Witty v. Mathews (52 N. Y. 512), the court (Folger dissenting) expressly decide that the obligation of the landlord to repair demised premises rests solely upon express contract, and that a covenant to repair will not be implied, nor will an express covenant be enlarged by construction (citing Mumford v. Brown, 6 Cow. 475 ; Arden v. Pullen, 10 M. & W. 321).

Thus far I have considered the case on the theory that the defendants caused the work to be done, and I cannot see that the plaintiff has a cause of action. But there is no proof in the case that he either did or caused the work to be done. The most that appears is, that some one of the defendants made some promises to the plaintiff which were without consideration and void. Even if it had been shown, the contractor would alone be liable for the trespass if any had been committed. 0 Nor did the relation between master and servant exist between the workman and the defendants, who appears to have given them the license (Blake v. Ferris, 5 N. Y.[l Seld.] 48 ; Pack v. Mayor, &c., 8 N. Y. [4 Seld.] 222; Kelly v. Mayor, &c., 11 TV. T. [1 Kern.] 432 ; Benedict v. Martin, 36 Barb. 288).

The exceptions should be overruled and judgment rendered for defendants, with costs.

Freedmah and Curtis, JJ., concurred.  