and the court held there was no liability by reason of the relation itself.
In Murray v. Albertson, 50 N.J.L. 167, 13 A. 394, 7 Am.St.Rep. 787, the same principle is found as to unfitness of premises, and the tenant was held responsible for the rent of property which he had abandoned by reason of the damp and unhealthy condition of the cellar caused by water, in the absence of any false representation or fraudulent concealment on the part of the landlord.
In Clyne v. Helmes, 61 N.J.L. 358, 39 A. 767, plaintiff, a sister of lessee, sued for injuries alleged to have been caused by a falling mantel which the landlord had agreed to make safe. The court held that the promise was without consideration and did not bind landlord for damages to either the lessee or his invitee.
In Land v. Fitzgerald, 68 N.J.L. 28, 52 A. 229, the court held that a landlord was not liable in a case where it was alleged that he had carelessly built and maintained a chimney which was insecure and dangerous by reason of its negligent and improper construction; that the danger was known to the landlord, and was not patent or known to the tenant, and that the tenant was injured by collapse of the chimney. The opinion held that a landlord is not required to inform a proposed tenant that a house is unfit for habitation, and that, lacking fraud, the tenant must be relegated to his contract.
In Peterson v. Zaremba, 110 N.J.L. 529, 166 A. 527, 528, a Court of Errors case, it was held that "normally a tenant leasing premises assumes the risk of dangers from their unsafe condition", but to this principle the court cited two important exceptions:
(1) Where the defective condition is of a portion used in common by different tenants, and (2) where the landlord, his attention being called to a defective condition, promises to repair, the risk otherwise assumed by the tenant is transferred to the landlord for such reasonable time as may be necessary for the fulfillment of the promise.
In Folley v. United B. & L. Ass'n, 117 N.J.L. 54, 186 A. 591, the Supreme Court held that the landlord is not liable for damages caused by lack of repairs, unless obligated so to do by distinct contract; that a promise made after execution of lease cannot be enforced because of lack of consideration.
It is true that where landlord undertakes to make repairs and performs the work negligently, the landlord might be responsible. The following cases held to that principle: LaBrasca v. Hinchman, 81 N.J.L. 367, 79 A. 885; Broame v. New Jersey Conference, 83 N.J.L. 621, 83 A. 901; Meyer v. Lembeck & Betz Eagle Brew. Co., 93 N.J.L. 7, 106 A. 814; Nilsson v. Abruzzo, 107 N.J.L. 327, 153 A. 486.
I have been unable to find in the reported cases in New Jersey any decisions relating to latent defects. I assume that is what is charged in the complaint in this case -- it is not claimed that the act of the landlord was willful. The law relating to the liability for injuries arising from dangerous conditions in demised premises is set forth in 36 Corpus Juris § 874, page 204:
"A landlord who, without covenanting to repair, and without knowledge of latent defects, puts a tenant into full possession and control of demised premises, not intended for public purposes, and which are free from defects of construction constituting a nuisance, will not be liable for personal injuries sustained on the demised premises, by reason of the defective condition thereof, by the tenant, members of his family, employees, guests or invitees, or others entering upon the premises under the tenant's title."
And "While a landlord does not impliedly warrant that premises are safe or fit for purposes for which they are rented, he will be liable for all injuries resulting to the tenant or those under him from latent defects in the premises of which the landlord had knowledge and concealed from the tenant." 36 Corpus Juris, sec. 877, page 206.
In a supplemental brief submitted by counsel for plaintiff it is suggested (1) that defendant Company is liable to plaintiff not by reason of the landlord and tenant relationship but irrespective of same on the theory of negligence. Such a conclusion cannot be drawn from the pleadings. The only relationship which could make defendant Company responsible must arise from the relationship of landlord and tenat.
(2) It is further claimed in this brief that "landlord having undertaken to remodel the premises had to exercise ordinary care and is liable for its negligence to the plaintiff". No suggestion of this condition as a fact is set out in the complaint. It is impossible to draw such a conclusion from the facts stated. As a matter of fact paragraph 8 of the complaint charges that plaintiff entered on said land as a tenant "where said boiler and heating plant and heater and equipment had been so constructed and installed".
The motion to strike will be granted, unless plaintiff desires to amend his complaint, in which case a reasonable time will be given to make such amendments, which complaint will then be subject to such motion as defendant Company may desire to make.
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