On appeal from the Supreme Court.
For the plaintiff-appellant, Benjamin Gordon.
For the defendant-respondent, Colie & Schenck (Frederic R. Colie).
The opinion of the court was delivered by
CASE, J. Judgment was entered for the defendant after the dismissal of the complaint as not setting up a cause of action. Plaintiff appeals.
The suit sounds in tort to recover for personal injuries suffered by plaintiff in a fall from the porch of a house owned 394 by the defendant and occupied by plaintiff's daughter, Helen Hardgrove, as lessee. There was an oral contract of letting between the defendant and Mrs. Hardgrove. the complaint, after alleging the making of the said contract of lease, continues thus:
"4. At the time the lease was made said tenant, Helen Hardgrove, pointed out to the defendant as landlord, and through its agent, George F. Mack, Inc., that the rear porch of the house leased was in need of immediate repair, and that its condition was such that unless immediate repairs were made the condition might become dangerous to said tenant and to her household, and to others who might have occasion to use said porch. Said Helen Hardgrove also stated that the making of such repairs as might be found to be necessary must be a part of the consideration for the lease, and unless the defendant landlord agreed to immediately inspect and examine the porch and ascertain what repairs were necessary, and immediately make such repairs as should be found to be necessary, no lease would be entered into.
"5. Said landlord agreed to make such examination and inspection immediately and to immediately make such repairs as might be found to be necessary, in order to keep the said porch from getting into a dangerous condition. Thereupon the lease agreement was consummated and the said Helen Hardgrove has, since that time, together with her husband and this plaintiff, occupied said premises."
The negligence charged is failure to examine and failure to repair. Giving the language of the complaint the construction most favorable to the plaintiff, the quoted language may be restated thus: Mrs. Hardgrove, the prospective lessee of the premises, before making her contract of letting, stated to the landlord that the condition of the porch was such that it was in need of immediate repair; that failing such repairs the condition might become dangerous to the tenant and to her household and to others who might have occasion to use the porch, and that no contract of letting would be entered into by the said Hardgrove unless the owner of the premises agreed, as a part of the contract of letting, to make the necessary
repairs forthwith; whereupon the landlord undertook, as a part of the rental agreement, forthwith to make the necessary repairs.
For forty years it has been recognized as the law in this state that "there is privity of estate and of contract between the landlord and his tenant arising from the letting, but there is neither privity of estate nor privity of contract between the owner of premises and the persons whom the tenant may choose to make members of his family in any capacity. Such persons dwell in the premises demised neither by license nor by invitation of the owner. Where there is neither privity of estate nor privity of contract, the owner of premises is not liable for injuries sustained by third persons by reason of the condition of the premises, unless by invitation, express or implied, the owner induces them to come upon the premises." That was the language used by Mr. Justice Depue in determining the Supreme Court issue in Clyne v. Helmes, 61 N.J.L. 358, heard by him, Chief Justice Magie and Mr. Justices Gummere and Ludlow. In that case the action was by the sister of the lessee and tenant who lived with the latter as his housekeeper and as a member of his household. The declaration alleged that the tenant and the plaintiff had called the attention of the defendant landlord to certain needed repairs, one of which was the mantelpiece which the defendant personally examined and which he promised and agreed to repair immediately, whereupon, as was alleged, it was the defendant's duty, under his agreement with the lessee, "to properly construct, repair, maintain and keep in repair and safe condition the said mantelpiece, &c., so that the said George Clyne and the members of his family and household could safely use and enjoy the said premises and the said ...