
    Adam G. Snyder, as Administrator, etc., App’lt, v. William Gorden, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    1. Landlord and tenant—Liability of landlord for false representations.
    A landlord who lets premises knowing that they are contaminated with infectious disease without notifying the tenant, is liable for damages in case the disease is communicated.
    2. Same—Right of tenant to bely upon statement of landlord.
    The tenant had a right to rely upon the positive declaration of the landlord who said that no such disease existed.
    Appeal from a judgment in favor of defendant entered on a non-suit, granted on a motion at the close of plaintiff’s case on the trial of the same at the Kings county circuit.
    Defendant owned a tenement-house, No. 54 Myrtle avenue. He hired the first floor, front rooms, to Adam GL Snyder, as a residence for the latter, his wife and boy five years old. They began to occupy about October 1, 1885, and in two weeks after the boy was taken sick with diphtheria and died of the disease November 5th. It was proven that the premises let to Snyder were infected with the disease during September, the month previous, and that Gorden knew it both by observation and by being told about it. When Snyder and his wife looked at the rooms, the tenant in the rear rooms told them about the scarlet fever and diphtheria having recently been in the house, and they went to Gorden and said that if this was true, they would not on any account take the rooms nor occupy them, as they had but one child and would take no risks. He, the defendant, then solemnly assured both the husband and wife that what they had heard from the tenant in the rear was a lie; that there was never any sickness in the house, except a little gastric fever, which was not contagious. He" said that the tenant in the rear rooms was telling this lie so that the front rooms might remain vacant and she could use them without paying for the privilege. He asked both the husband and the wife to rely upon his word in this matter, saying that he spoke the truth. The plaintiff and his wife saw that the tenant in the rear was using the front rooms, and they believed the defendant when he said that the story of the diphtheria and scarlet fever was a lie invented by the other tenant to frighten them off.
    
      Moses J. Harris, for app’lt; William J. Gaynor, for resp’t.
   Pratt, J.

The action is brought by the plaintiff as administrator of a deceased child under section 1902 of the Code of Civil Procedure.

The defendant had an apartment house in Brooklyn which was tenanted by families. One suite of apartments was vacant, and the father and mother of the deceased applied to the defendant to hire it.

The rear suite on the same floor and adjoining the vacant suite was occupied by the McCart family, which had several children.

The plaintiff went to see the vacant apartments and was shown the rooms by Mrs. McCart, who told him at the time that her children had scarlet fever and diphtheria. He says he reported this to the defendant, who said it was not true, that there was no scarlet fever or diphtheria there, and no sickness except gastric fever. The next day he sent his wife to see the rooms; Mrs. McCart showed them to her, and also informed her that her children were sick with scarlet fever and diphtheria. The wife says she reported this to the defendant, and he denied its truth.

They took the rooms and a few weeks later their child took sick with diphtheria and died.

The general rule of law is that a landlord who lets premises knowing that they are contaminated with infections disease without notifying the ■ tenant is hable for damages in case the disease is communicated. Cesar v. Karutz, 60 N. Y., 229; Span v. Ely, 8 Hun, 258.

It is claimed that he ought not to be held liable in this-action because the fact that scarlet fever and diphtheria were in the house was communicated to the plaintiff before he took the rooms by Mrs. McCart.

_ We think the plaintiff had a right to rely upon the positive declarations of the defendant, that no such disease-existed. The plaintiff says that the defendant told him at-the time he denied the fact that the apartments were thus infected, that the McOarts wanted to make it appear so. because they wanted the rooms left vacant in order that they could have the use of the apartments;. adding that the-plaintiff need have no fear, that the house was perfectly healthy and that there had never been any sickness there.

It was no part of the duty of the plaintiff to search or inquire who was_ the doctor of the McOarts in order to-ascertain from him the nature of the disease from which the McCart children suffered, therefore, we do not think the case falls within the principle laid down in Long v. Warren (68 N. Y., 426).

The plaintiff did not have the obvious means at hand to* ascertain whether the disease existed or not; we, therefore, think the case should have been submitted to the jury.

Judgment reversed and new trial ordered; costs to abide the event.

Barnard, P. J., and Dykman, J., concur.  