
    BENSON a. SUAREZ.
    
      Supreme Court, Third District;
    
    
      General Term, May, 1864.
    New Tbial.—Landlord and Tenant.—Damage by Fall of unsafe Building.—Chabge.
    The owner of land with an unsafe building upon it may be held liable for injuries done by the failing of the building to the property of an occupant of adjoining land, notwithstanding the former had leased the premises to another person, reserving rent but covenanting to repair.
    
      It seems, that he would be liable without any covenant to repair.
    
    
      It makes no difference that the covenant to repair was qualified as being for the purposes of a hotel.
    Under a lease providing that the tenant shall not sublet without written consent of the lessor, a person who is in actual occupation as a sub-tenant of the lessee with oral consent of the lessor, is'not a wrong-doer; and he may recover against the lessor for damages done to his property by the fall of such unsafe, building upon the premises.
    Motion for a new trial, on a bill of exceptions.
    The action was brought by ¡Nathan L. Benson against Leonardo S. Suarez, to recover damages.which were stated in the complaint substantially as follows:
    That on the 1st May, 1860, the plaintiff was, and ever since had been, in the lawful possession and occupation of a lot of land in Cohoes, on which was situated a building occupied by plaintiff as a carriage-house. That the defendant was, and still is, the owner of another lot of land next adjoining. And that before the accruing of the cause of action herein stated, the defendant, by his servants and agents, negligently and insecurely erected upon the lot of land so owned by defendant, a building used and occupied by the tenant of defendant as a shed for inn-keeping purposes, and carelessly and negligently allowed the same, from decay and other causes, to be and remain in a weak, insecure, and unsafe condition—of all which the said defendant had notice—until on or about the first day of February, 1861, when the said shed, in consequence of such defects and causes, fell to the ground, thereby dragging down, the same being attached thereto, the carriage-house building so occupied by the plaintiff, thereby injuring certain carnages and sleighs, property of plaintiff, in the carriage-house building.
    The answer was a general denial.
    The cause was tried at the Albany Circuit on the 20th of ¡November, 1863, before Mr. Justice Ilogeboom and a jury.
    The plaintiff proved a lease made by the defendant, by his agent, W. M. Chadwick, to one O. 0. Finney, for the premises in question, including as well the ground on which the carriage-house stood, of which the plaintiff was in occupation at the time of the injury, as the premises upon which the decayed shed was, which was connected with buildings occupied, by Finney, under the lease, as a hotel. The lease contained the usual covenants on the part of the tenant that he would quit and surrender the premises at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted; and that he would not assign, let or underlet, the whole or any part of the premises, without the written consent of the landlord. It also contained a covenant on the part of the lessor that he would repair in ease of partial damage by fire; and also that he would immediately proceed to do certain repairs and painting, “and to make such other repairs as may be needed to place the entire premises in a thorough tenantable condition as a hotel.”
    The plaintiff testified that he had been in occupation before this lease under previous owners, and that after defendant became owner of the premises the plaintiff occupied under Finney. That the plaintiff’s agent, Chadwick, knew that he was occupying that part of the premises, and that he had done so for years. And that Chadwick had made repairs on the part of the buildings occupied by the plaintiff.
    Finney, the tenant, testified that the plaintiff was in occupation of such part of the premises when the defendant hired, and that Chadwick understood that he was to remain. That in answer to his objecting that the rent was too high, Chadwick said that the rent from Benson, the plaintiff, would in effect reduce the amount.
    When the plaintiff rested, the defendant moved for a nonsuit, which wag refused. He then gave evidence which he relied on as showing that the building was in good condition to withstand all ordinary danger of the elements, and that the accident was caused by a very heavy fall of snow.
    The judge, among other things, charged the jury as follows.
    . That if the plaintiff was in the occupation of the premises with the knowledge, consent, and approval of the defendant, it was the duty of the defendant to keep the buildings on the adjoining premises in such condition and repair as to withstand the ordinary action of the elements; and tha't if they found that the defendant’s building on the premises adjoining those occupied by the plaintiff fell by means of the defendant’s neglect to keep it in such condition and repair, and thereby the plaintiff’s property was injured or destroyed, the plaintiff was entitled to recover.
    
      That if they found that the plaintiff was thus lawfully there in occupation of these premises, he would be entitled to recover the damages that he might have suffered by means of the adjoining building being so negligently attended to that it fell, and thus caused the destruction of the plaintiff’s property.
    That the plaintiff was lawfully there, if he was there with the knowledge, consent, and approval of the defendant, and that it was for them to determine whether he was so there from the evidence in the case.
    That the plaintiff was lawfully there, if he was there occupying the premises with the knowledge and consent of the defendant; and that he was so there could be inferred from the inducements held out before the lease was madej from the knowledge defendant had of his being there, and from his making repairs whilst plaintiff was in the occupancy.
    That as to the rights of the plaintiff, if he was in the lawful occupation of the building, as before mentioned, which was connected with and framed into those of the defendant, the defendant was bound to keep his premises in such repair as to withstand the ordinary action of the elements ; and that if they found the other propositions in favor of the plaintiff, and that this building fell by means of its not being in such a state of repair, then the plaintiff was entitled to recover.
    To these several instructions plaintiff’s counsel duly excepted.
    The j udge was asked to charge the jury, that if the plaintiff went into the occupancy of these buildings with the full knowledge of their condition, and thus voluntarily exposed himself to the hazard, it did not create any liability on the part of ,the defendant to repair as to him, or keep the building in a condition to resist the ordinary action of the elements, and the plaintiff would not then be entitled to recover; which he refused to charge, provided the jury found that the plaintiff went into and continued in possession lawfully, and with the knowledge, consent, and approval of defendant, as before explained ; and the defendant’s counsel excepted to such refusal.
    The jury rendered a verdict in favor of the plaintiff for $500, and the court ordered that the proceedings upon the verdict be stayed until the determination of the general term, and that the exceptions be heard in the first instance at the general term.
    
      
      Henry Smith, for the motion.
    
      Ira Shafer, opposed.
    
      
       See Davenport a. Buckman, 16 Abboíts’ Pr., 341; Anderson a. Dickie, 11 Bosw.
      
    
   By the Court.—Peckham, J.

The defendant insists that the judge erred in refusing to nonsuit the plaintiff. I do not think so. The defendant was the owner of the tavern-stand and appurtenances where the old shed fell. He had leased them to Finney, and covenanted to keep them in repair. He failed to keep this old shed on his premises in repair, and by reason of its being left in a weak and dilapidated condition it fell down, and drew down a shed adjoining to it of the plaintiff, and injured his wagons, &c., to the amount of the verdict.

I am not at all clear that it was necessary to show any covenant to repair by the defendant in ordter to sustain this action. “ Sie utere tuo ut alienum non laidas” is a sound maxim, and entirely applicable to this case. An owner has no right, to erect a nuisance on his own land to the injury of his neighbors. He cannot erect so weak and unsafe a building that it shall fall in ordinary times from its mere insecurity and insufficient strength, and thus injure the building or property on his adjoining neighbor, without being responsible for that injury. Nor can he suffer a building on his premises to become so much out of repair as to cause a like injury without being responsible, especially when he had notice of its condition and neglected to repair.

Nor can he shield himself from liability in such a case by charging negligence on his neighbor, for presuming to occupy his own lot in a careful manner in the face of such a danger.

What is this but saying to his neighbor, “ I have erected an unsafe and dangerous building on my lot, and you must allow yours to lie vacant and unoccupied, otherwise my building may blow down upon you and destroy your property.” See Cook a. The Champlain Transportation Co. (1 Denio, 91); and see Lasala a. Holbrook (4 Paige, 169), Panton a. Holland (17 J R., 92.)

Leasing premises to another, reserving rent, with such an unsafe building thereon, I do not think discharges the liability of the owner. Whether it does or not, however, is not material here, as the defendant in this case agreed to keep the building in repair.

It is objected that it was only for hotel purposes that he agreed to keep it in repair. That contract fully covers this case. They were not in sufficient repair for hotel purposes when they could not stand in ordinary weather.

I see no error in the charge of the judge. The plaintiff could no doubt he in the lawful possession of the premises leased to Finney, without any consent in writing from the defendant, the owner.

He was in the actual occupation thereof. He had the consent of Finney, the lessee of the defendant, to he in. He had the actual consent of the defendant to be in also, hut he had no written consent.

As to whom, then, was he a wrong-doer ?

It is of not the slightest consequence that the lease provided that the lessee should not underlet without the consent in writing of the lessor.

This was not an action upon the lease, and this plaintiff was no party to the lease. Surely, by the consent of all the parties interested, he could get into the lawful possession and occupation of the premises.

He had all that, as the jury have found, and as the evidence proved.

Hor do I think the judge committed any error in refusing to charge as requested; and I think the remarks already made, if correct, show that he could not be required so to charge.

A new trial is denied, and judgment ordered upon the verdict. 
      
       Present—Peckham, Miller, and Ingalls, JJ.
     