#### Sarah E. Richmond, as Ancillary Executrix with the Will Annexed, etc., of George H. Richmond, Deceased, Respondent, *v.*Lucy E. Lee and Katherine P. Hurlbert, Appellants.

First Department,

January 10, 1908.

Landlord and tenant — duty to repair in absence of covenant — destruction of sewer.

In the absence of an agreement to that effect a landlord is under no obligation to his tenant to keep the demised premises in repair; such covenant will not be implied, nor will an express covenant be enlarged by construction. *

Hence, although a landlord has covenanted to repair the roof'and any inj.ury by fire or otherwise not rendering the premises untenantable, he is not bound to provide a new "sewer-when the one existing at the time of the lease is cut off by excavations made upon the lands of an adjoining owner, for the injury is not to the premises, but to a sewer on adjoining lands.

Houghton, J.', dissented.

Appeal by the defendants, Lucy E. Lee and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the ofBee'of the clerk of the county of New York oh the 28tli day of June, 1907, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

*William H. L. Lee,*for the appellants.

*James M. Fisk,*for the respondent.

McLaughlin, J.:

In February, 1901, by an instrument under seal, the defendants . leased for a term of ten years premises situate at 326 Fifth avenue in the city of,New York to the plaintiff’s intestate, who occupied ■ the same until the time of his death, which occurred in November, 1904. The lessee covenanted, among other things, “ to make, at his own cost and expense, all such repairs as shall be. necessary to preserve the said premises, in good order and condition, and that all such repairs shall be fully equal to the original, in class and quality; it being understood that the said lessors shall keep the roof and skylights in order, but shall not be made liable to the said lessee for any *280damage caused by the leakage of the roof,, unless they shall neglect to repair the same within a-reasonable time, after a 'written notice of such leakage shall be delivered to them from said' lessee.’-’ The instrument contained a further provision that, “ if the premises hereby leased shall be injured by fire, or otherwise,'but not rendered untenantable, the same shall .be. repaired with all-proper speed at the expense of the lessorsbut if-the damage shall be so "extensive' ■asto render the premises untenantable, the- rent shall be propor-. tionately paid up to the time óf such damage, and shall from thenceforth cease until such time as-the same shall be put in good, repair.” - ■ ■ .. , '

-At the time the lessee went into possession of the leased premises the only.sewer pipe or drain -to carry Off the. sewerage,' waste and .drainage ran entirely underground ffom4 the southerly side -of the. leased premises in a southerly direction under and across three lots of land which were owned by and in the exclusive possession of persons other than the defendants herein,- and thence connected and discharged into a public sewer running .through Thirty-second street. The owners of these lots in July, 1904, in making an excavation for the construction of a building, destroyed so much- of the.. sewer pipe as ran across their lots and there was then no place where the sewerage, waste and drainage could be discharged except on the premises leased. - After the destruction-of this pipe the lessee notified the agent of. the defendants'(the defendants' being at-the time absent in Italy) and, made a-demand upon him that the lessors, cause a new sewer pipe to be Constructed and connected 'with the public sewer.' The agent, however, -having refused to comply with such demand, the lessee did so himself at a cost-of $350,. and thereafter the plaintiff brought this action to recover such amount, upon the. ground that under the terms of the' lease'the. defendants were obligated to do this' work. . She had a judgment and defendants appeal. ‘

A careful consideration of the lease fail's to disclose any covenant obligating the lessors to build this sewer.; They did covenant that if the leased premises were injured'by-fire or otherwise, but not' rendered untenantable,, they should be "repaired with' all proper- ' speed at the expense of' the lessors. But the premises themselves were not injured. They were in precisely the same -condition that *281they were at the time the lessee went into possession, so far as the sewer pipe was'concerned, and this covenant did not obligate them to keep a sewer not on the leased premises in proper condition or repair. The rule is thoroughly settled that in the 'absence of an agreement between the parties, a landlord is under no.obligation to his tenant to keep demised premises in repair. (18 Am. *&*Eng. Ency. of Law [2d ed.], 215.) It is also equally well settled that a covenant to repair will not-be implied nor will an express covenant be enlarged by construction. (*Witty*v. Matthews, 52 N. Y. 512.) A rule similar to that of *cmeat emyptor*applies to leasing of real property and throws upon the lessee the reponsibility of examining the demised premises for defects- and providing against their consequences before he enters into the lease *(Watson*v. *Almirall,*61 App. Div. 429) and he assumes all of the risks arising from the condition of the premises unless he has an express agreement on the part of the landlord in relation thereto. *(Franklin*v. Brown, 118 N. Y. 110.)

Here, the tenant was bound to know the condition of the premises with reference to the sewer on the adjacent lots when he entered into his lease, and if he did not want to assume the burden of making another connection in case that portion of the sewer were destroyed, he should, by an appropriate covenant in the lease, have imposed that obligation on the defendants.' Pie did not do so, and, therefore, the plaintiff was not entitled to recover from the defendants what it cost to'build the new sewer or make the new connection.

The judgment appealed from, therefore, must be reversed and á new trial ordered,'with costs to appellants, to abide event.

Ingbaiiam and Clabke, JJ., concurred.; Patteeson, P. J., concurred in result; Houghton, J., dissented.

Judgment reversed, new trial ordered, costs to appellants to abide event.