Opinion
June, 1913.
Herbert W. Hovey (Samuel Greason, Jr., of counsel), for appellant.
Bennett E. Siegelstein, for respondent.
This is an action brought by plaintiff to recover damages for personal injuries sustained by plaintiff from the falling of a ceiling. Defendant was the owner of a tenement house on Columbus avenue. About September 28, 1912, plaintiff went to the premises and saw the janitor in charge, who, it is undisputed, was the agent of defendant for the purpose of renting and caring for the apartments. Plaintiff testified that she saw the apartment was not in very good condition. The janitor promised to touch up certain rooms, and to put some varnish on the parlor woodwork. The parlor is the room in which the ceiling fell, that caused the injury, and the janitor stated that the owner was not willing to fix the parlor. The janitor stated that all the rooms including the parlor had been put in good order a month ago, and that the parlor ceiling had been papered. Nothing was done to the parlor ceiling for plaintiff. On October twenty-eighth, after plaintiff had taken possession, she called the janitor's attention to a crack in the ceiling, stating that she was afraid it would come down. The janitor stated "there was no danger," not to be afraid, it had already been fixed. Plaintiff remained in the apartment.
These were the representations made to the plaintiff. They were substantially true. The janitor testified that the ceiling was repaired two months before the plaintiff moved in. This reduces the statement of safety made by the janitor to the mere expression of his opinion.
Plaintiff relies upon the case of Williams v. Goldberg, 58 Misc. 210, and her attorney evidently endeavored to bring the facts within the rules therein laid down, but in my opinion he has failed. In the Williams case the plaintiff called the attention of the landlord to the ceiling and stated that she was afraid it would fall. He replied that it was all right and had been up for a century, and thereafter she again called his attention to the ceiling and he stated that he had had it tested, that it was all right and perfectly safe. This representation was false and was relied upon by plaintiff. In the case at bar the representation that the ceiling had been fixed about a month ago was substantially true. The statement that there "was no danger," if anything more than the expression of an opinion, did not justify the plaintiff in relying upon it inasmuch as plaintiff had equal opportunity for observation. It was no warranty. Long v. Warren, 68 N.Y. 426.
As between landlord and tenant, there is no implied covenant that the demised premises are safe to live in or are fit for the use the tenant intends to make of them. O'Brien v. Capwell, 59 Barb. 497.
The only ground upon which plaintiff can successfully base her action is false and fraudulent representations. The record discloses no such false or fraudulent representations as the law recognizes as a basis for an action.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
LEHMAN and BIJUR, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.