
    Benjamin W. Franklin, respondent, v. Mary C. Brown, appellant.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed June 1, 1886.)
    
    1. Landlord and tenant—Lease—Responsibility of lessee—Liability
    FOR RENT.
    In the absence of any covenant in the lease itself, as to the fitness of the leased premises for occupation as a dwelling, no covenant of the lessor can be implied on the subject, and unless relieved by reason of direct or constructive fraud or culpable negligence on the part of the lessor, the tenant hires at his peril; and a rule similar to that of caveat envptor applies, and throws on the lessee the responsibility of examining as to the existence of defects in the premises, and providing against their ill-effects.
    2- Same—Counter-claim.
    Noxious gases came into the heuse from the adjoining premises, a stable, which rendered it unhealthy. Neither of the parties knew of the existence of these gases prior to the signing of the .ease: Held, no defense to an action for rent
    3. Same—Responsibility of landlord.
    The responsibility of the landlord is the same in all cases. If guilty of negligence, no other delictum which leads directly to the accident and wrong complained of he is liable; if not so guilty, no liability attaches to him.
    
      Augustus H. Vanderpoel, for respondent, Franklin.
    Agar, Ely & Fulton, for appellant, Brown.
   O’Gorman, J.

This action was brought by the plaintiff to recover rent for three moths, claimed to be due him by defendant, according to the terms of a written lease, of the dwelling-house No. 6 West Seventeenth street in this city.

The defendant admitted the living in and occupation of the house as stated in the complaint, but alleged as a counter-claim that, by reason of the existence of noxious gases and stench in and pervading the house, she became so ill that she was obliged to leave the house, and to incur various medical and other expenses necessary to her cure, which amounted to more than the rent claimed to be due.

The referee found that, during the times covered by the lease, noxious gases and vapors and unhealthy odors existed throughout the house in very large quantities, and made it impossible for the defendant to use the furniture in the house without injury to her health, and that in attempting to use the furniture in the house her health was injured by the vapors, odors and gases, and that the furniture in the house was an important element in determining the consideration to be paid by defendant to plaintiff. ■

That the house was unhealthy during-the period covered by the lease, and not in a condition fit to be inhabited by the defendant without danger to her health, and that the house, its fixtures and furniture were let to defendant for a private dwelling-house, to be used by her as a private residence only.

The referee found, also, that the ( sfendant incurred medical expenses, which were the imn ¿diate and necessary result of her living in said house, and that she incurred certain hotel expenses while she was unable to five in the house, by reason of its unhealthy condition.

He found, however, that the noxious gases did not arise-from the house itself, but came.from the adjoining premises, which were used as a stable, and that neither the plaintiff nor the defendant knew of the existence of these-noxious gases, etc., in the house prior to the defendant, signing the lease.

There is sufficient evidence to sustain these findings of fact, and the only question of law which arises is whether or no there was any implied covenant on the part of the lessor, plaintiff, that the house was fit for habitation as a-dwelling-house, or whether any duty existed on his part towards the plaintiff, from the breach of which she incurred damages, which she was legally entitled to charge against him, as a counter-claim in this action. This question has, from time to time, been the subject of contention in the courts, both of England and of the United States. In this state however the conclusion may be fairly gathered from decisions of prevailing authority, that, in the absence of any covenant in the lease itself, as to the fitness of the-leased premises for occupation as a dwelling, no covenant of the lessor can be implied on the subject, and that unless by reason of direct or constructive fraud or culpable negligence on the part of the lessor, the tenant hires at his peril, and a rule similar to that of caveat emptor applies, and throws on the lessee the responsibility of examining as to-the existence of defects in the premises and of providing-against their ill-effects. There is no responsibility on the landlord in such cases, except such as arises from absolute delictum on his part. Jaffe v. Harteau, 56 N.Y., 398; Meeks v. Bowerman, 1 Daly, 100; Wallace v. Lent, id., 481; Colson v. Whiting, 14 Abb. N. C., 61; Sutphen v. Seebas, id., 67.

If, for instance, the landlord knew before, or at the time of the letting, that the premises were, by reason -of some latent defects, unfit for occupation in the use for which they were hired, and he failed to disclose these defects he would be guilty of negligence. Edwards v. Railroad, 98 N. Y., 247, 249. He would also be hable if the defect arose from his own wrongful act. Chadwick v. Woodward, 13 Abb. N. C., 442; Rhinelander v. Seaman, id., 445; Caesar v. Karitz, 60 N. Y., 229.

In that case the plaintiff claimed damages from defendant on the ground that, being owner of a house, in certain rooms of which tenants had been recently ill of small-pox, he, with knowledge of that fact, failed to disclose the same to the plaintiff, and leased to the plaintiff the rooms which had been thus occupied to the damage of the plaintiff.

The court of appeals sustained a verdict for the plaintiff on these facts.

In the case at bar, however, the facts are not similar. Here the plaintiff, lessor, and his tenant, the defendant, were, at the time of the execution of the lease, equally ignorant of the existence of the noxious gases and odors which rendered the premises unfit for the purposes of her living in them, and no defect in the house itself was the cause of the mischief, but it was wholly attributable to the stench from the adjoining stable, and the stench increased in intensity after the plaintiff had for some time continued her occupation under the lease. Nor did the defect arise from any wrongful act or culpable negligence of the plaintiff. On these facts the referee’s conclusions of law were proper and must be sustained.

In Edwards v. Railroad (98 N. Y., 249 et seq.), the rule of law as to the responsibility of the landlord is clearly laid down.

The responsibility of the landlord is the same in all cases. If guilty of negligence, or other delictum, which leads directly to the accident and wrong complained of, he is hable; if not so guilty, no liability attaches to him.

The judgment below is affirmed, with costs.  