#### Morris Rotter, Appellant, *against*John Goerlitz, Respondent.

(Decided January 5th, 1891.)

An owner of two adjoining buildings is not liable to the tenant of one of them under a lease from him, for injuries to the tenant’s goods caused by the removal of the walls of the other building, leaving the demised premises exposed, where the lease contains no covenant *to*repair or keep in repair, or that the adjacent property should remain in the same condition as at the time of hiring, and there was no deceit or false representations as • to the condition of the demised premises ; and where the work was done under a contract with the owner giving the contractor sole charge of the work, and providing that the walls of the demised premises should not be disturbed, and it appears that no injury to the tenant or invasion of his premises was contemplated in making the contract or was necessarily involved in doing the work under it.

Appeal from a judgment of the District Court in the City of New York for the Third Judicial District dismissing plaintiff’s complaint.

The facts are stated in the opinion.

*John M.*Tierney, for appellant.

*Maurice*TJntermeyer, for respondent.

Bookstaver, J.

The respondent-was the owner of the premises known as Nos. 17 and 19 Greenwich Avenue in this City, and the appellant was in occupation of the ground and basement floor of No. 17 as a tenant under a written lease *485expiring May 1st, 1891. The respondent, desiring to build on No. 19, made a contract with Theodore E. Tripler to take down the old building on it and remove the debris. MrTripler was to have sole charge of that work, and was especially requested by the respondent not to interfere with the walls of No. 17 in doing it. In the latter part of June or the first of July Mr. Tripler and his men commenced work under this contract, and it is claimed by the appellant that, in removing the walls of No. 19, the entire westerly side of the extension occupied by him on No. 17 was exposed, and his carpets, furniture, etc., in that apartment were injured by rain. This action is brought to recover for that injury.

It is true that in every written lease there is an implied covenant on the part of the lessor that the lessee shall have quiet enjoyment of the premises during the demised term, which is not affected by the statute declaring no covenants shall be implied in conveyances of real estate *(Moffat*v. Strong, 9 Bosw. 57; *Mayor*v. Mabie, 13 N.. Y. 151; *Mack*v. *Patchin,*29 How. Pr. 20, aff’d 42 N. Y. 167).

But as was said by Beardsley, J., in *Cleves*v. *Willoughby*(7 Hill 86), speaking of implied covenants in instruments relating to land, “ That doctrine has a very limited application for any purpose to a lease for years, and in every case has reference to the title, and not to. the quality or condition of the property,” and in effect is no more than a covenant that the lessor has a right to lease the premises hired, and will defend that right on peril of forfeiting his claim for rent. The law recognizes no other implied covenant in respect to leases that we are aware of, unless it be in the case of a ready furnished house or apartment, that it is reasonably fit for immediate use, and even this has been seriously questioned, if not entirely repudiated, as the law of this state *(Franklin*v. Brown, 118 N. Y. 110 ; *Edwards*v. *New York H. R. Co.,*98 N. Y. 248; *Howard*v. *Doolittle,*3 Duer 475; *Meeks*v. *Bowerman,*1 Daly 99).

On the trial of this action it was admitted that the respondent had given the appellant a lease of the lower floor and basement of the premises No. 17 Greenwich Avenue *486which would, not expire until May 1st, 1891. But no attempt was made on appellant’s behalf to show that this lease contained either a covenant to repair or keep in repair the premises so hired, or that the adjacent property should remain in the condition it was at the time of the hiring, during the whole or any part of the term. Nor was it claimed that any deceit was practised or false representations made by the appellant as to the character or condition of the premises in question, or of the sufficiency of the supporting walls if left to stand by themselves ; nor were any representations made as to the fitness of the premises for the purposes for which they were let. Whatever may be argued as to implied covenants, it cannot be claimed that, under such a state of facts, the law of this state will inject into leases a covenant that the landlord will keep in repair the demised premises, or that the adjacent property will remain in the condition in which it was at the time of the letting, when the tenant neglects to have such covenants inserted in them.

On the contrary, Mr. Justice Beardsley in *Cleves*v. *Willoughby (supra),*says: “ The maxim *caveat 'emptor*applies to all property, real, personal, and mixed, and the purchaser generally takes the risks of its quality and condition unless he protects himself by an express agreement on the subject.” And this has been reaffirmed with emphasis in *Edwards*v. *New York & H. R. Co. (supra),*and more recently in *Franklin*v. *Brown (supra).*Nor is the hardship of such a doctrine in this case so great as it at first appears. The appellant had occupied these premises for 10 or 12 years previous to the last hiring; he if anybody should have known whether or not the extension had independent walls, or was merely a lean-to, built against the wall of the adjacent property. We think it clear from the testimony the landlord did not; he had No. 19 surveyed by a competent surveyor before he let the contract to remove the building on it to Mr. Tripler, who reported to him that both 17 and 19 had independent walls, and in making the contract he especially provided that the building and walls of No. 17 should not be disturbed. We also think that the justice who tried the case *487was fully justified by the evidence in finding, as he must have done in rendering judgment for the defendant, that no part of the premises No. 17 was disturbed by the respondent directly, and that the performance of the contract he made with Tripler would not necessarily cause a disturbance of these premises and in this way inflict an injury on appellant.

All the misapprehension in this case arises from the fact that the respondent owned both lots, and his rights and duties as to each have been confused. Let us suppose that A.-owned No. 19, and B. owned No. 17, the lower part of which he had let to C. Now, had A. torn down the walls of his house only, and thus left the broadside of the extension on No. 17 exposed to the weather, because that extension never had any wall of its own: who would have thought of holding A. liable to C. for any injury his furniture might have sustained by reason of such exposure ? And why not? Simply because A. owed no duty to 0. except to remove his walls carefully só as not to injure C.’s property through negligence. Neither, under the principles of law above stated, would B. have been liable to C.; for B. had neither covenanted to keep in repair, nor that the adjacent property should remain as it was at the time of the hiring, and C. had rented the premises as they were, at his own risk. In the absence of fraud, deceit, false representations, and of any express covenant, we know of no rule of law by which the respondent can be held for damages under such circumstances simply because he owned both lots; his rights and duties, as far as the different tenants in each were concerned, were in no wise affected thereby.

The only other ground on which respondent could have been held liable in this case was because of some negligence in removing the building on No. 19 whereby appellant’s property was injured.

But it is. a rule of law so well settled in this state as to need no discussion here, that where a contractor has undertaken the performance of certain specific work in such a way that the owner has no control or authority over the manner-of its performance, the owner is not responsible for the con*488tractor’s negligence in doing the work. This rule is as applicable to work on real property as on personal ( *Goudier*v. *Cormack, 2*E. D. Smith 254; *McEnanny*v. *Kyle,*14 Daly 268; *Blake*v. *Ferris,*5 N. Y. 48; *Pack*v. *City of New York,*8 N. Y. 222; *McCafferty*v. *Spuyten Duyvil & P. M.*R. R. *Co.,*61 N. Y. 178).

In order to make the owner liable for the negligent acts of another, the relation of master and servant, or principal and agent must exist between them. The evidence does not establish any such relation between the respondent and Mr. Tripler. On the other hand, it shows beyond doubt that Mr. Tripler had sole charge of the work, and the respondent had nothing to do with it.

The only exceptions to the last above-stated rule which we know of, are where the work originally contracted to be doné is unlawful in itself, is extremely hazardous, as blasting *(Buddin*v. *Fortunato, ante,*p. 195; *Hay*v. *Cohoes Co., 2*N. Y. 159; *Hexamer*v. *Webb,*101 N. Y. 387), or necessarily involves the doing of an injury to another. In such cases the owner cannot be allowed to shift the burden of his own wrong or the extreme hazard, to the shoulders of his contractor. But taking down an old building is neither unlawful nor does it involve unusual hazard. The question then is, did the performance of the contract necessarily involve the doing of an injury to the plaintiff ? Obviously, if the walls of the two buildings were entirely independent, tearing down one would in no way involve the walls of the other. In *Earl*v. *Beadleston*(42 Super. Ct. 294), it was held in the case of a party wall which the adjoining owners were bound to keep up, that one of them- could not maintain an action against the other, who had employed a contractor to take down his house, which involved the removal of the beams resting in the party wall, for it was said that this could be done without necessarily weakening the wall.

In this case appellant, and one witness in his behalf, testified that when the rear part of the wall on No. 19 was torn down, it exposed the whole of one side of the extension before mentioned, and that there was no other protection to *489that part of his premises than the wall so torn down. This is denied both by the respondent and Mr. Tripler, who testify that both buildings had independent walls except along a part of- the extension, and there the wall torn down was wholly on lot No. 19, and Mr. Tripler testified that the extension in question next the wall torn down, was protected by a lath and plaster partition left standing when the other wall was removed, and that there was no opening except one place near the ceiling, which was closed with board in a short time. It is apparent from the testimony that the extension must have had some kind of support next to No. 19, to permit these boards to be fastened upon it, and to support the roof, which remained intact.

On this state of facts, the justice who tried the case rendered his decision in favor of the respondent, and must have found that the work contracted to be done would not necessarily injure the appellant. While the evidence is conflicting, we think there was quite enough given by-the respondent to justify the conclusion arrived at. We are satisfied from the evidence that no injury to appellant nor invasion of his premises were contemplated by respondent when he made the contract, and that none were necessarily involved in doing the work under it.

The judgment should therefore be affirmed, with costs.

Bischoi'B, J., concurred.

Judgment affirmed, with costs.