Opinion
April 24, 1950.
Judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting appellant of a violation of section 2040 of the Penal Law (willful violation of the terms of a lease, by failing to service and repair a refrigerator in an apartment rented to a tenant) reversed on the law and the facts, the information dismissed, and the fine remitted. The evidence adduced was insufficient to establish a failure to furnish a service or facility required to be furnished by the terms, expressed or implied, of the rental agreement with respect to the premises referred to in the information. There is no evidence of any express agreement by appellant to make repairs, or furnish refrigeration service. On the contrary, the lease under which the tenant entered into possession of the apartment expressly provides that mechanical refrigeration and equipment, if provided, is for the accommodation of the tenant, and that the landlord shall not be responsible for any failure of refrigeration. We do not determine on the record presented whether or not an obligation is imposed on appellant, by section 78 Mult. Dwell. of the Multiple Dwelling Law, to keep the tenant's refrigerator in repair. (Cf. Herring v. Slattery Bros., 291 N.Y. 794.) If such an obligation exists, however, it is imposed by statute, and not by the terms of any agreement between appellant and his tenant. ( Davar Holdings, Inc., v. Cohen, 255 App. Div. 445, affd. 280 N.Y. 828; Emigrant Ind. Sav. Bank v. 108 W. 49th St. Corp., 255 App. Div. 570, affd. 280 N.Y. 791. ) Nolan, P.J. Carswell, Johnston, Wenzel and MacCrate, JJ., concur.