by it to another person, the owner continues to the law of that case, if these owners had it, and stipulates for the enjoyment of a profit even been under a covenant with their predfrom it." In 1 Thomp. Neg. 317, the learned ecessors in the title or with any other person author has concisely stated the law of nui- but Phelon, to keep this pier in repair, their sance in harmony with all these cases. breach of the covenant, and failure to discharge their duty to their covenantee, would not have made them liable for the death of the child; and with much less reason can such a liability spring from a mere stipulation in a lease made by one for whose acts they are in no way responsible, which merely put it in their power to make the repairs. In cases where it is said that a landlord, bound to make repairs upon denised prem

Now within these authorities, what ground is there for imposing liability upon these defendants for this nuisance? They did not create it, and had no connection whatever with those who did create it. They were not bound by the lease to repair the pier. They did not demise the pier with the nuisance thereon, and they had no notice, actual or presumptive, of the existence of the nuisance. None of the grounds of liability ex-ises, is responsible for a nuisance thereon, ist which are mentioned by Judge FOLGER in Clancy v. Byrne. They were simply entitled to the rent. It is not even proved that they actually received any. But it has never been held in any case that the receipt of rent imposes responsibility upon a landlord for a nuisance for which he is not otherwise responsible. Landlords always are entitled to rent, and, if the mere receipt of rent would make them responsible for a nuisance upon the demised premises, then they would always be responsible, irrespective of other circumstances which have always been deemed necessary to create the responsibility.

the obligation to make the repairs was one existing between him and the tenant. Russell v. Shenton, 2 Gale & D. 573. The whole argument on this point is summed up in the statement that, as there was here no breach by the defendants of any duty due from them to the tenant, the stipulations in the lease do not concern a stranger thereto.

notice.

There is no authority from the reported decisions or from the text-books which imposes upon the landlord, not otherwise liable for a nuisance upon demised premises, the duty of active vigilance to ascertain their condition. A landlord has never been held responsible The fact that the defendants, under the for a nuisance because he did not himself oblease, had the right to go upon the pier and tain notice of its existence. But it has almake repairs, if they should see fit to do so, ways been held to be the duty of any person is wholly immaterial in this case. Even seeking to enforce the landlord's responsibilwhen an owner demises premises and cov-ity for a nuisance to show that he had such enants to repair, the covenant cannot inure directly to the benefit of a third person not a There are two cases to which I have not party thereto. But in such case the third yet referred which are so like this in all maperson, injured because, for want of repairs, terial particulars that they ought to be rethe demised premises have become a nui- ceived as conclusive authority for the defense sance, has a cause of action primarily against of this action. In Woram v. Noble, 41 Hun, the tenant. But, because the tenant, in case 398, a case entirely similar to this, the action of a recovery against him, could sue his land- was brought to recover damages for an inlord for indemnity upon the covenant, to pre-jury sustained in consequence of a defective vent circuity of action the person injured may coal-hole, and it appeared that the defendant bring his action against the landlord, not be- became the owner of the premises in Septemcause the landlord owed him any duty to re-ber, 1883, subject to a lease to a tenant expair, but because he owed that duty to his piring May 1, 1884, which required the tentenant. It would have been wholly imma-ant to make all repairs; that the coal-hole terial if these defendants, owners of the pier, was then in the sidewalk, but it had not been had let it without reserving any right to go constructed by the defendant, nor did he have upon it for repairs, and even if they could any notice or knowledge of its defective connot have gone upon it for repairs without be-dition, although the tenant had noticed the ing trespassers. Fish v. Dodge, 4 Denio, depression in the stone about a year previous 311; Swords v. Edgar, supra. There is no to the accident; and it was held that the decase which holds that whether the landlord fendant could not, in the absence of any evican or cannot go upon the demised premises dence to show that he was responsible for the to make repairs is a material circumstance condition of the coal-hole or had knowledge affecting his liability for a nuisance existing of its defective condition, be held liable for thereon. It was held in Clancy v. Byrne, the injury sustained by the plaintiff. The supra, that a lessee who has covenanted with judge writing the opinion said: "We find his landlord to repair is not responsible to a no judicial decision, and no principle enuncistranger for a nuisance upon the demised ated in any elementary work, that will furpremises while in the possession of a subten-nish a basis for a recovery against the defendant to whom he had let them. As he had ant in this action. He did not construct the made no covenant to repair with his tenant, work that became a nuisance, and he did not and was not bound to indemnify him, the continue it in any legal sense." There, ag person injured could not maintain an action here, the defendant became the owner subagainst him although he had covenanted ject to a lease, and the nuisance existed at with his landlord to repair. Here, according the time he became such owner, and it was

held that he could not be made liable for the | stream, or in making the excavation through accident without proof of notice to him of the the bank, but that had been done by the old existence of the nuisance. In Stone Road v. company, it was not liable, and upon this Railroad Co., 51 N. Y. 573, the action was ground it moved for a nonsuit, which was brought to recover damages for injuries to denied. Upon the appeal it was held that the plaintiff's road-bed, caused by the same the defendant could not have the benefit of being washed and flooded in the years 1864 the point that there had been no request to and 1865, by reason of an embankment and abate the nuisance, because it was in no way bridge built over a creek by a prior owner of taken at the trial, and hence the case was defendant's road in 1851 or 1852. The de- treated as if the request had actually been fendant became the owner of the embank- made and proven. The point decided as ment, bridge, and of its road by purchase at stated in the head-note is that "the successor a foreclosure sale in 1857, and in February, to the title and possession of property, who 1863, it leased its road, including the embank- omits to abate a nuisance erected thereon by ment and bridge, to the Erie Railway Com- another, after notice to so do, is liable for the pany, which took possession of the road, and damage caused by its continuance." Judge had possession under its lease at the time of DENIO, writing one of the opinions, held that the damage complained of by the plaintiff; an action on the case will lie against one who and the general rule was affirmed that, in or- continues a nuisance by which damage is der to maintain an action for damages result- occasioned to the plaintiff without notice first ing from a nuisance upon defendant's land, given to remove it. He cited no authority where such nuisance was erected by a prior sustaining his views, but cited authorities in owner before conveyance to defendant, it is conflict with them, holding that they were necessary to show that before the commence- not binding upon the court. But it is exment of the action he had notice or knowl-pressly stated that the court did not pass upedge of the existence of the nuisance, but on the question whether the defendant was that it is not necessary to prove a request to liable without notice to remove the obstrucabate it. Judge LOTT, writing the opinion, tion and restore the bank of the stream; and said: "Where persons succeeding to the own- the views of Judge DENIO, besides having ership of land on which a nuisance had pre- the support of no authority in this country or viously been erected have been held liable for England, were distinctly repudiated in Stone damages resulting from its subsequent con- Road v. Railroad Co., supra. In McCarthy tinuance, it appears either that it was after v. Syracuse, 46 N. Y. 194, damage was caused notice of its existence, or that the question by a defective city sewer, which it was the of such notice had not been raised at the trial." duty of the city to keep in repair, and it was That case is a most emphatic authority for held liable for the damage without notice of the defendants here. There the defendant the defect in the sewer, because it had omitbecame the owner of the premises with the ted to discharge that duty. That case bears nuisance existing thereon, and actually leased no analogy to this. In Irvine v. Wood, 51 them in the same condition to another com- N. Y. 224, the action was against lessor pany, which was in possession at the time of and lessee to recover for injuries sustained the damage complained of; and yet, in the by the plaintiff from a defective coal-hole in absence of proof that the defendant had no- the street. The plaintiff recovered against tice of the nuisance, it was held not to be lia- both defendants, and both appealed; but the ble for damages caused thereby. lessor abandoned his appeal, and the case was argued only on behalf of the lessee, who had maintained and used the coal-hole in its defective condition, and it was held that he was liable. The main litigation at the trial was as to the liability of the lessee, which rested upon plain principles of law; and the case is authority only as to such liability. No point or claim was made at the trial that the landlord had no notice of the defective condition of the coal-hole, or that he could be made liable for the accident only upon proof of such notice, and no such point was before the court upon the appeal. In Swords v. Edgar, I will now notice the principal cases which supra, as stated above, the action was against are supposed to be in conflict with some of the landlord who demised the pier when it the views I have expressed and with the con- was in a defective and dangerous condition, clusion I have reached. In Brown v. Rail- and the case is a valuable authority for the road Co., 12 N. Y. 486, the predecessor of the views I have expressed. In Beck v. Carter, defendant had constructed its road across a 68 N. Y. 283, and Clifford v. Dam, 81 N. Y. stream of water in such a manner as to cause 52, the actions were in each case against the the stream to overflow and damage the lands defendant, who had himself created the nuiof the plaintiff. Upon the trial the defend-sance. While in Bellows v. Sackett, 15 Barb. ant insisted that, inasmuch as it had no 96, some things were said by the judge writagency in building the obstruction in the ing the opinion which are not now the law,

It is frequently said that a landlord who has demised premises with a nuisance thereon continues liable for the nuisance although he did not create it, because it was a misfeasance to demise them in that condition. But it will be found that all, or nearly all, the cases in which this has been said are cases in which at the time of the demise the landlord had notice of the nuisance. In the case last cited the defendant demised the premises with the nuisance thereon, and yet it was held not to be liable, because there was no proof of notice.

That

the case was properly decided, because there | defendant, who, having no notice of the nuithe defendant, the landlord, erected the nuisance, suffered the tenant to remain in occusance, and demised the premises with the pation of the premises upon the same terms nuisance thereon. Rex v. Pedly, 1 Adol. & as before, receiving rent; and it was held that E. 822, is much relied upon by the plaintiff he was liable for damage caused by the nuias an authority in his favor. There the de-sance, on the ground that he had relet the fendant purchased premises which were in premises with the nuisance thereon. the occupancy of tenants under a demise for case is in no way an authority for the plainshort periods of time from the prior owner, tiff; but, by implication, the point decided and a nuisance arose thereon after the pur- strongly favors the contention of the defendchase, and after the defendant began to re- ants. It is clear that the court was of the ceive the rents. The defendant, the periods opinion that the defendant would not have being short, was treated as having relet the been liable but for the fact that he had let premises to the tenants with the nuisance the premises with the nuisance thereon. thereon, and it was held that he thereby be- That case went by appeal to the exchequer came liable for the nuisance; and upon that chamber, and is again reported in the same ground the decision can stand in harmony volume, at page 485; and it was there strenwith all the cases I have cited. But the court uously contended on behalf of the defendant seems to have gone further, and affirmed a that he was not liable because he could not proposition not necessary for the decision, be treated as having demised the premises with that such a reversioner is liable to be indicted the nuisance thereon, and because he had no for the continuing of the nuisance, if the notice of the nuisance. The court took the original reversioner would have been liable, case under consideration, and finally recomthough the purchaser has had no opportunity mended the plaintiff to accept a stet processus, of putting an end to the tenant's interest or (substantially a final stay of proceedings,) abating the nuisance. That proposition is and the plaintiff accepted it, evidently inunsound, and as to that the case has been duced so to do because of information that overruled and distinctly repudiated in Eng- the judgment would go against him. In the land. In Rich v. Basterfield, 4 Man. G. & S. course of the argument in the exchequer 784, the case of Rex v. Pedly was largely chamber, Chief Justice ERLE said of the landcriticised, and CRESSWELL, J., writing the lord's liability: "If he lets the premises with opinion, said of it that "if Rex v. Pedly is a nuisance, all parties agree that he is reto be considered as a case in which the de- sponsible." The reasons why the exchequer fendant was held liable because he had de-chamber recommended that the plaintiff mised the buildings when the nuisance ex- should accept a stet processus do not appear isted, or because he had relet them after the in the report. But in 9 Best & S. 15, there user of the buildings had created a nuisance, is what purports to be the undelivered opinor because he had undertaken the cleansing, ion of the court in that case, showing that the and had not performed it, we think the judg-court had unanimously come to the conclusion ment right, and that it does not militate to reverse the judgment of the queen's bench; against our present decision. But if it is to and in the opinion the case of Rex v. Pedly be taken as a decision that a landlord is re- was again criticised, explained, and limited, sponsible for the act of his tenant in creating as in prior cases. One question in the case a nuisance by the manner in which he uses was whether a landlord, who has the power the premises demised, we think it goes beyond to determine a tenancy from year to year by the principle to be found in any previously giving notice, and who does not exercise it, decided cases, and we cannot assent to it." is to be held as thereby reletting the premises. In Todd v. Flight, supra, Rex v. Pedly was In the opinion published in 9 Best & S. the cited as holding that if the defendant demised ground on which the exchequer chamber difthe privy either when it had become a nui- fered from that of the queen's bench distinctsance, or if he had the duty of cleansing it ly appears as follows: "We agree that to after it became a nuisance, he might be in- bring liability home to the owner, the premdicted for the nuisance. In Russell v. Shen- ises being let, the nuisance must be one which ton, supra, it was said by Lord Chief Justice was, in its very essence and nature, a nuiDENMAN, in reference to Rex v. Pedly, that sance at the time of letting, and not some"it was an indictment against the owners of thing which was capable of being thereafter houses and privies, which had been built for rendered a nuisance by the tenant, and that the very purpose of being so used as to create it is a sound principle of law that the owner a nuisance, unless the owner took effectual of property receiving rent should be liable for means to prevent it. Those means not hav- a nuisance existing on his premises at the ing been adopted, the owner who received date of the demise. But that wherein we rents for both was held liable for the public nuisance." In the case of Gandy v. Jubber, 5 Best & S. 78, the owner of premises, attached to which was an area, let the same to a tenant from year to year, and died, having devised the property, with an iron grating over the area improperly constructed and out of repair, so as to amount to a nuisance, to the

differ is that a landlord from year to year, having the power of giving the ordinary notice to quit, and not giving it, is thereby to be held as reletting the premises, and that such forbearing to give notice is equivalent to a reletting." That case, then, is an authority that, upon such facts as we have here, devisees of premises under a lease for a term,

with no power in the devisees to terminate | cited were nuisances created by damming, obthe lease during the term, such devisees are structing, polluting, and diverting streams, not liable, although they received rent, for a and that they are not therefore applicable. nuisance which they did not cause, create, or Why are they not applicable? They were all authorize. decided by the application of the general law of nuisance, and it has never been suggested in any case that there is any law of nuisance peculiar to such cases, and that they are not to be governed by the same rules that apply to other nuisances. They announce general rules, in terms applicable to all cases of nuisance.

In Salmon v. Bensley, Ryan & M. 189, a nisi prius case of very doubtful authority, it was held that a notice to remove the nuisance left at the premises is evidence against a subsequent occupier. That case has no bearing upon this, because the defendants were not subsequent occupiers. They never occupied, and did not continue the nuisance. The pier If it is at all material, it is a mistake to asremained in the occupancy of Phelon. Be-sume that the children of Mrs. De Dion first sides, there is no question of notice in this became owners of this pier upon the death case, as the court held as matter of law that of their mother. Under the will of their the defendants were responsible if the nui-grandfather, John Gardner, they had vested sance existed at the time of the demise to remainders therein long before the death of Phelon. In Wood, Landl. & Ten. 618, the their mother, and long before the pier was author says: "Where a nuisance results from out of repair. They took no new title upon such want of repair, and there is no cove- the death of their mother. The estate which nant to repair upon the part of either the was before in them was simply enlarged by landlord or tenant, an action may be main- the disappearance of the precedent estate. tained against either of them therefor." But Were they bound in some way to divest themhe was speaking of repairs which the land-selves of the estate which they had long had lord was bound by some law to make. But in order to escape responsibility for a nuithere is no general law, and no rule of law, sance which they had not created or authorwhich imposes upon the landlord the duty to ized? Or if they did not or could not do make repairs upon premises in the occupancy that, were they bound to go upon the pier, of his tenant. At page 917 the learned au- and possibly expend in repairs more than the thor states the proper rule in harmony with entire income therefrom to escape responsiall I have said. There he says: "The land- bility for the nuisance? And were they lord's right to possession being suspended bound to do this at the peril of great damduring the term, it follows that his liabili- ages, without notice of the nuisance, while ties in respect to the possession are also sus- the pier was in the possession of a tenant who pended, except as to such matters or defects had hired it from a stranger to them at a in the premises as existed when the premises small rent, because it was out of repair, and were let, arising from the manner of use or who was under a duty to the public to keep defective construction. If a nuisance exist- it safe and in repair? If the children of Mrs. ed upon the premises at the time of the de- De Dion had, upon the death of their mother, mise, the landlord as well as the tenant is demised this pier without any covenant to reliable for the damages resulting to third per- pair, and it had become out of repair and a sons therefrom, although it only becomes a nuisance during the term of the demise, they nuisance by the act of the tenant in using it would not have been responsible for the nuifor ordinary purposes. And if the tenant sance; and why should a greater responsibilcreates a nuisance upon the premises during ity be cast upon them because the pier came the term by an unusual or extraordinary use to them subject to the demise? What have thereof, although the landlord cannot be they done to incur the responsibility? If made chargeable for the consequences in the they had demised the pier knowing it was out first instance, yet, if he subsequently renews of repair, they would have been guilty of conthe lease with the nuisance thereon, he be- tinuing the nuisance, and upon that ground comes chargeable therefor the same as though would have been responsible for it. But they the nuisance had existed at the time of the have done nothing. They neither created, original demise; and where a person is in authorized, nor continued the nuisance, and possession as a tenant from year to year, each they were not bound by contract or the law year is treated as a reletting, so that the land- to discharge a duty which rested upon the lord becomes chargeable for a nuisance creat- tenant. I am confident that a holding that ed by the tenant during a previous year which the defendants are liable to the plaintiffs for is in existence at the commencement of the the consequences of this nuisance would be a new year;" and there is more to the same ef- departure from the law of nuisance as unifect, as there is also in Wood, Nuis. 78, 141. versally approved in the books. If Phelon had been the mere servant or agent of the defendants, and had caused or permitted this or any other nuisance upon the pier, then the defendants would have been responsible for it, and the cases of Clark v. Fry, 8 Ohio St. 358, and Ellis v. Gas Co., 2 El. & Bl. 767, would have been in point.

It is said that many of the cases I have

I have not thus far alluded to the claim of the defendants, that they may find protection in the fact that a receiver had been appointed of the rents. It is not necessary to determine whether that fact furnishes them an independent defense. The pier and other property came to them as tenants in common. One was a lunatic, and a partition on that

account became important, if not necessary. | property, in fee to certain persons in trust An action was commenced by one tenant in that they should, during the lives of the tescommon against the other two, and a re- tator's children, "in the first place, out of the ceiver was appointed to take the rents which accrued after the death of their mother. The receiver thus appointed was not their agent. If he had created any nuisance, or done any other wrong, they would not have been responsible for it. He was the agent and officer of the court, bound to obey its directions, and subject to its control. It ordered him to take and retain sufficient of the rents, otherwise payable to the defendants, to make necessary repairs. Under such circumstances, with a tenant bound to make the repairs, and a receiver also bound to make them, could the owners,--one a lunatic, and the other two residing in Europe,without any notice of the nuisance, be charged with any responsibility therefor on the theory of fault or delictum on their part?

The principles here involved are very important, and I have deemed a pretty thorough examination of this case quite proper. My conclusion is that this action, upon the facts now appearing, cannot be maintained, and that the judgment should be reversed, and a new trial granted.

rents, issues, and profits thereof," uphold, support, amend, and repair "the same, with all needful and necessary amendments, repairs, and alterations, and next distribute the residue among his children, and after their death among their issue, to whom was also devised in fee the remainder; that the estate was subsequently divided, and the pier in question, among other pieces of real estate," fell to Jane, the testator's daughter, and her issue, viz., Mrs. Hutton and Mrs. Steele, the defendants herein, the original trustees having died. McCarty was appointed by the court trustee in their place of that portion of the property which fell to Jane and her heirs, and he, as such trustee, on the 1st of May, 1880, executed to one Phelon a lease for that part of the pier already referred to, for the term of five years, at an annual rent of $750 for three years and $850 for the other two years, but reserving to "the party of the first part, [the lessor,] or his agent, the right to enter the premises for the purpose of making repairs, if he should see fit to make them." "But," it continued, "the" party of the first part shall not be obliged to

ANDREWS, FINCH, and PECKHAM, JJ., repair the premises;" and by its, terms the

concur.

DANFORTH, J., (dissenting.) I cannot concur in the judgment about to be pronounced in this case. It appears that on the 8th of October, 1882, the plaintiff's intestate, while lawfully upon the easterly half of the pier or wharf known as "No. 54," in the city of New York, fell through its flooring into the East river, and was drowned. The plaintiff, as administrator, brought this action for damages to the next of kin on account of his death. Issue was joined by the defendants, and brought to trial before a jury. At the close of the plaintiff's case it appeared from admissions in the answer that the defendants were owners of that part of the pier where the accident happened, and by evidence that it was in a defective condition in 1879, and thenceforward until it gave way, and the jury also found, upon sufficient evidence, that the intestate did not, by any negligence on his part, contribute to the injury. Upon that state of the case the defendants were clearly liable upon the principle of the maxim "sic utere tuo ut alienum non lædas." There was no error, therefore, in denying their motion for a dismissal of the complaint, and the exception thereto was without merit.

It is claimed, however, by the appellants that their relation to the property was so controlled by circumstances, afterwards disclosed by way of defense, as to relieve them from liability. At the close of the plaintiff's case the defendants went into evidence, and, not controverting the ownership of the pier, its condition, or the plaintiff's injury, they showed that James Gardner, being the former owner of the pier, devised it, with other

lessor was to be exempt from all liability to the tenant by reason of their non-repair, either then or in the future, and no obligation was imposed upon the tenant to keep them in order or in repair. McCarty continued to act as trustee until the death of Jane, the surviving daughter of the testator, which took place May 22, 1881, whereupon suit was at once commenced by Mrs. Steele for partition of the premises which had been set apart to her mother and her issue, and in that action an order was made July 29, 1881, by which one Brown was appointed receiver "of the rents, issues, and profits that have accrued since May 1, 1881, of the lands and premises described in the complaint in that action, and which were set apart to Jane De Dion, deceased, in severalty, and her issue." Upon these facts the learned counsel asked the court to direct a verdict for the defendants on the grounds: "First. Because this. property was leased by Thomas McCarty, trustee, on the 1st day of May, 1880, for five years, and that the trustee then held the legal title to the property. That Jane De Dion, the life-tenant, was living until May, 1881, a year and one month after the lease was made, and the defendant owners took the pier at that time, subject to the lease, and at no time have had any notice of the defective condition of the pier. Second. That the defendant owners cannot be charged with the condition of the pier at the time of the accident, because at that time it was leased to the defendant Phelon, and it was his duty to repair it; and, in the absence of notice of the defective condition of the pier to the defendant owners, the duty to repair, on their part, never arose. Third. Because the defendant