#### Bennett Hirschfield, Respondent, *v.*Irving Alsberg et al., Appellants.

(Supreme Court, Appellate Term,

April, 1905.)

lease — Covenant as to repairs — Defective condition — Tenant’s liability to third person injured by falling glass — Release to landlord no defense.

In the absence of a covenant by the landlord, the tenant is bound to make repairs to the leased property.

Unless premises are in a defective condition at the time of letting, or the landlord covenants to repair, the tenant alone is liable for injuries to a third person caused by reason of the defective condition of the premises.

A defective condition of leased premises six years after the tenant moved in raises no presumption that such defect existed at the time of the original letting.

Where in an action against defendants, who had been tenants of a building for six years, to recover for injuries to plaintiff while walking on the sidewalk, being struck by glass falling as the result of the slamming shut of a swinging window on the sixth story which to defendants’ knowledge had been out of repair *142for a long time, it appeared that on the day of the accident defendants had placed a table in front of and so near the window that when the latter swung back half open it was intercepted by the table, to which it was not fastened, and a draft caused the window to slam breaking the glass which did the injury, the evidence is sufficient to hold defendants liable upon the ground "of 'negligence in failing either to open the window and place it against the wall or fasten it to the table so that the draft could not have ) driven it shut, and also upon the ground of omission to repair the window, it not appearing that the landlord had covenanted in the lease to make repairs.

The landlord and defendants not being joint wrongdoers satisfaction by the landlord for the injuries to plaintiff is no defense to an action against the defendants. But assuming that they were, it being shown without objection that the unproved release given to the landlord was given subject to a reservation of a right to sue the defendants, they were not released thereby.

Appeal by defendants from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, seventh district, borough of Manhattan.

Rollins *&*Rollins (Theodore H. Lord, of counsel), for appellants.

Herbert C. Kahn, for respondent.

Leventritt, J.

On the 13th day of July, 1904, about one o’clock, while walking south on the easterly sidewalk of Greene street, the plaintiff was struck by falling glass. It is sufficiently proven that this glass fell from the sixth loft of the premises occupied by the defendants as a result of the slamming shut of a window swinging on hinges. The defendants had been tenants of the building for six years. The lease between them and the landlord was not offered or proved. Both omission to repair and an affirmative act of negligence were established. It was testified to that the window had been out of repair for a long period to the knowledge of the defendants, but that they had taken no steps to repair except to notify the landlord. The mutual obligations of the landlord and the tenant under the lease were not proven. It is in evidence that on certain occasions *143the landlord made repairs. The facts from which the affirmative act of negligence can be inferred are the following: The defendants had knowledge of the condition of the window; on the day in question they had placed a table in front of it and only one and a half feet removed, so that when the window was surging back it was intercepted by the table and was consequently not opened full or square against the wall and fastened. There is no evidence that it was fastened to the table. A draft caused the window to slam, shattering a portion of the glass and precipitating it into the street below.

On these facts there was sufficient to> hold the tenants solely liable. So far as the defective condition of the window is concerned, the obligation to repair, on, the state of the record, was on the tenant. The landlord, if liable at all, would be so only in the event that the condition was defective when he demised the premises or if- he covenanted to repair. In Ahern v. Steele, 115 N. Y. 203, the following clear statement of the law is cited with approval: “We think there are only two ways in which landlords or owners can be made liable in the case of injury to a stranger by the defective repairs of premises let to a tenant, the occupier, and the occupier alone, being *prima facie*liable — first in the case of a contract by the landlord to do repairs when the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets the premises in á ruinous condition.” Nelson v. Liverpool Brewery Co., L. R. (2 C. P. Div.) 311, 21 Moak’s Eng. Rep. 308. There is no proof of any covenant to repair on the part of the landlord and in its absence the obligation to repair is on the tenant. 2 McAdam Landl. & Ten., §§ 383, 384; Bronner v. Walter, 15 App. Div. 295; Suydam v. Jackson, 54 N. Y. 450. There is no presumption that the defective condition of the window obtained years before when the original letting took place; the inference is quite the other way.

So far as the affirmative act of negligence is concerned, that was solely of the tenants’. own doing. Had- the window been properly opened full and placed against the wall, or had *144it been even fastened to the table in its half-open condition, the draft could not have driven it shut.

The remaining question in the- case is whether the acceptance by the plaintiff of $10-0 from the landlord barred relief against the tenants. In this action the plaintiff’s recovery was $75. On the undisputed facts a much larger recovery would have been justified by the proof of damage. On the facts as proved the landlord and the tenants were not joint tort feasors. Satisfaction by a stranger — the landlord in this case — is no defense. Atlantic Dock Co. v. Mayor, 53 N. Y. 64. The headnote in that case correctly digests the case as follows: “A cause of action *ex delicto*is not extinguished by the recovery and satisfaction of a judgment against a stranger, in nowise joined in liability with defendant, for the full amount of the damages claimed, nor is the plaintiff estopped thereby.”

But conceding for the sake of argument that the landlord and the tenants were joint tort feasors, the case is not altered'. The defendants sought to prove a release 'given by the plaintiff to the landlord on the payment of $100. The release was not proven and its contents are not properly before the court. On the. other hand, the- plaintiff proved without objection that the instrument given was subject to a reservation of a right to sue the tenants. As the items of plaintiff’s actual or special damage for outlays, loss of salary and injury to his clothes exceeded $175, it is readily conceivable that he accepted payment from the landlord with the intention of holding the tenants for the major part of the damage. The reservation was in the nature of a cover uant. not to sue, and under the authority of Gilbert v. Finch, 173 N. Y. 455, the instrument would not release the joint feasor, even if we should hold that that was the- relation of the landlord and the tenants.

The judgment is right and should be affirmed, with costs.

Scott and Gkeenbaum, JJ., concur.

Judgment affirmed, with costs.