The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-17
Court Of Common Pleas.
Before Hon. Judge Ingraham.
YANpv npn AVN rrv~, A Nyr 4, or.

PGge rs E0dyton.-Ths was an action to recover ia.
mages under the following state of facts-Deiendant
rented the first door Of the premises No. Fulton
to plaintiff from May 1st 1854 to May 1st 1885, at the
annual rent Of 500 for the purpose Of carrying the
fruit business being by written lease without cove
nants the part of the landlord Over the Of said
premises skylight which consisted Of horizontal
sash, set with glass, line with plaintiffs ceiling.
Over this and in continuation of the third story
upper skylight, designed as protection to the pre-
misses from the weather as well as TO admit light this
being the only shield from the storms to the of the
promises below. The landlord occupied premises above.
Plaintiff alleges that in consequence Of the glass in the
skylighs being broken when he took possession and
Also after repairing by landlord becoming again broken
and the rain driving through 1t and upon bis fruit under
meath, he injured to a large amount Also that the
water and refuse pipes leading from defendants pre-
misses overhead connected with underneath the
floor OF plaintiffs premises, which led from plaintiffs
becoming out Of order offensive and dsagrceabic
smells ensued, greatly injuring plaintiffs business
The whole amount in damage was laid at 81 900.
II insisted the trial by Mr. Winchester Britton
counsel for defendant, that defendant not liable
under the first count of the complaint the premises
were in the same condition when the lease taken
and in the absence Of any covenant the part Of the
landlord to repair the tenant took the premises for bet
ter worse as they we're and that the upper skyght
bis roof and portion of his premises during
the tenancy and he must keep II in repair that the
terms OF the agreement reduced TO writing and
tanned the entire agreement, and must govern As to
the second count II contended that the injury
proven to have originated from deficiency in sewer upon
defendant in any manner contributed To the injury.
Counsel for plaintiff tended to the first count that
the upper skyigh part Of plaintiffs premises and
that the lease not being designed include these pre-
misses, bar to plaintiff proving verbal agree
ment which he alleged that the landlord should put and
keep the skylig in order Also that the lease was re.
sfrcve combining the plaintiff to particular branch of
business and that in such cases there was an implied
covenant that the premises in suitable condition
for carrying the business Of plaintiff And as ia the
second count that the injury proven to have result
ed from condition OF defendant pipes The Court charg-
ell the jury that the skylight part Of plaintiffs
premises and that the law well settled that in alb.
of covenants the tenant must keep his pre-
mises in repair That IL is hardship to require the
tenant to procure insertion Of covenant repair in
his lease, II such l. the agreement and that the plaintiff
could not under this portion OF his complaint.
His honor also remarked that II plaintiff could at
all having himself shown that he put his fruit under the
syght after knowledge Of it, defective condition, and
when he knew the fruit subject 10 injury he could
not recover for damage To il which ensued As TO the
Pipes, a different rule prevails. As portion
the premises Of defendant and portion those Of plain
i, each was liable for damage resulting 10 tue other
from improper condition Of those on his own premises.
That there evidence tending 20 show that de.
fendants pipes contributed 10 the injury which was for
the jury 10 determine and if they found such to be the
to asses the damage, and bring in their verdict
cordngy, this the only question which he found
necessary or proper under the pleading and proof
submit 20 their consideration, The occupied the
court three days Verdict for plaintiff, se2 20