#### The Mayor, &c. of the City of New York *v.*Corlies.

Where premises have been demised for a term of years, and are in the actual occupation of the tenant when a penalty is incurred upon such premises, for a violation of an ordinance of a municipal corporation, the tenant is liable for the penalty, and not the landlord.

Nov. 25;

Dec. 30, 1848.

This was an appeal from the assistant justices’ court of the city of New York. The action was brought against the de*302fendant in the court below, as the owner of premises in Water street, in the city of New York, to recover a penalty given by the following ordinance of the city : *“*No person shall cast or lay, or suffer to run in or upon, or within three feet of any wharf, or in any lane, alley, lot, or vacant place, to the southward of 14th street, the contents of any sink, tub, privy or cistpool under the penalty of $10 for each offence.” The complainant alleged that the defendant on the 22d of July, 1848, and at divers times, had violated the ordinance by suffering the contents of the sink at his premises in Water street, to run into the adjoining lot. In defence of the action, it was set up that the legal title of the premises in question, was vested in Henry Tail, Joseph W. Corlies, (the defendant,) Valentine G. Hall and Nathaniel Weed, executors, and Cecile Tonnele, executrix of the last will and testament of Laurent Salles, deceased, and that the co-executors and executrix should have been joined with him as defendants. The general issue was also pleaded.

Upon the trial it was admitted that the premises in question were a part of the estate of Laurent Salles, and that the defendant was one of the executors, and that the legal estate was vested in the executors under the will. The street inspector testified that on the 22d of July, 1848, the contents of the privy on the premises leaked, and ran on to the adjoining lot; that he complained to the defendant, who said he would have it attended to. The ordinance upon which the action was brought, was then duly proved. On the part of the defendant it was shown by the agent of Laurent Salles’ estate, that at the time complained of, the premises in question were leased for 5 years from the preceding May, and were then occupied by the lessee. It was also proven, that by the terms of the lease, the tenant was to make all repairs. The street inspector, on his cross-examination, testified that the defendant was not in possession of the premises. The assistant justice rendered judgment for the plaintiffs.

*W. B.*Leeds, for the appellant.

I. The property in respect to which this penalty was incurred is vested in the executors of Laurent Salles, deceased, of whom *303the defendant is one. If the owners of the lot are liable at all, the action should have been brought against all the executors, jointly, and not against the defendant alone. Where joint tenants, or tenants in common are chargeable in respect to their real estate, they should all be joined in the action, even though it be in form *ex delicto.*And if all are not joined the party sued alone may plead in abatement. (1 Chit. Pl. 83, 87.)

II. But the owners of the property were not liable for the penalty, to recover which the suit was brought. The premises being in the occupation of a tenant who had covenanted to repair, the action should have been brought against him and not against the landlords, or either one of them. (1 Chit. Pl. 83. 4 T. R. 318. Taylor’s Land. & Ten. 95, 96, 101.)

*T. E.*Tomlinson, for the respondent.

The question as to defendant’s liability is reduced to this. Had he such a control over the premises as to have prevented a violation of the ordinance ? If he had, he “ suffered” the violation. The law is well settled that the landlord has such a right. (Taylor’s Landlord and Tenant, 94. *Prourd*v. *Hollis,*1 B. & C. 68, 7 Pick. 76.) This power being in the defendant, it was his duty to have exercised it; and having neglected to do so, he is liable for the penalty incurred.

By the Court. Vanderpoel, J.

The question is, whether the landlord here is liable for the penalty. The premises had been demised for the term of five years, and were actually in the possession of the tenant, when the penalty accrued. As between landlord and tenant, there is no implied covenant that the former shall repair. *(Hart*v. *Windsor, 12*Mees. & Wels. 68.) And in *Payne*v. *Rogers,*2 H. Black. 350, it was held, that if the owner of a house is bound to repair it, he, and not the occupier, is liable to an action on the case for an injury sustained by a stranger, from the want of repair. Butler, J. said, he agreed that the tenant, as occupier, is prima facie liable to the public, whatever private agreement there may be between him and the landlord ; but if he can show that the landlord is to repair, the landlord is liable for neglect to repair. The court *304held the landlord, in that case, liable, to prevent circuity of action *'r*as the tenant would have his remedy over against "his landlord. In *Cheetham*v. *Hampson,.*4 T. R. 318, an action on the case was brought for not repairing fences, whereby the plaintiff was injured, and it was held, that it could only be maintained against the occupier, and not against the owner of the fee, who is not in possession. Lord Kenyon then well says, “ Deplorable, indeed, would be the situation of landlords, if they were liable to be harassed with actions for the culpable neglect of their tenants.” And Buffer, J. says, that the instances of such actions against owners were, where the *tenentes et oc~ eupatoses*were the same, but the action lies against them only in the latter capacity.

So in *Regina*v. *Sir John Buckrall, 2*Ld. Ray. 804, an information was exhibited against the defendant for not repairing a bridge, because he was lord of the manor; but it was held, by all the judges, that the *defendant’s lessee*was bound to repair the bridge. The defendant, as landlord, was not liable for this penalty, and the judgment must be reversed.