Art. 9. Landlord and Tenant.

with knowledge of the existence of a nuisance, is liable for damage resulting therefrom, but responsibility for such nuisance is not imposed upon a tenant merely by his acceptance of the lease, and to establish liability on his part it must be shown that he either had notice of the existence of the nuisance, or that sufficient time had elapsed in which he could have obtained notice thereof by exercise of proper care. Timlin v. Standard Oil Co., 126 N. Y. 514.

The lessee of a railroad is bound to keep it in repair and to protect those who have occasion to use it, from any injury in consequence of its dilapidated condition, the lessor out of possession has no such obligation, and is not liable for negligence or torts of the lessee. Miller v. N. Y., L. E. & W. R. R. Co., 125 N. Y. 122.

When the owner lets different parts of the same building to different tenants, each tenant has the right as against every other that such other tenant shall not injure him by any active interference with the part which such other tenant occupies. There is an obligation on the part of one tenant to exercise reasonable care not to alter the condition of that part of the premises which he occupies so as to injure other tenants in the same building. Quigley v. Johns Mfg. Co., 26 App. Div. 434, 50 N. Y. Supp. 98.

A covenant by a tenant to keep demised premises in repair does not inure to the benefit of a stranger who sustains an injury in consequence of its breach; it can only be enforced by the covenantee or his assignee. A lessee, by negligently suffering the demised premises to become dangerous, is liable to the stranger who has been injured in consequence. He is not a guarantor of the safety of the premises, and is bound only to exercise reasonable care. Negligence must be established as matter of fact. Mere constructive negligence is not sufficient. Odell v. Solomon, 99 N. Y. 635.

The provisions of the Laws of 1860, chap. 345, relieving a tenant from the payment of rent of a building which, without fault or negligence upon his part, shall have been destroyed or so injured as to be untenantable, have reference to a destruction or injury resulting from some sudden and unexpected action of the elements or other cause, and not to the gradual deterioration and decay produced by the ordinary action of the elements. It does not affect the common-law rule requiring the tenant to make ordinary repairs. Suydam v. Jackson, 54 N. Y. 450, cited in Ed

Art. 10. Partners.

wards v. McLean, 122 N. Y. 302; Messerole v. Hoyt, 161 N. Y. 59; Rice v. Culver, 172 N. Y. 65.

SUBDIVISION 4.

When both Landlord and Tenant are Liable to Third Persons.

The occupants of a pier are primarily chargeable with the duty of keeping it in repair, but where it is leased, and at the time of the demise and delivery of possession to the lessee it is in defective and unsafe condition, and, in consequence, an injury happens to one lawfully thereon, the lessor who is receiving the benefit by way of rent or otherwise is liable. A covenant in the lease binding the lessee to keep the pier in good order and repair does not remove or affect this liability to a third person on the part of the lessor. Swords v. Edgar, 59 N. Y. 28.

Where a coal-hole had been excavated in the sidewalk of a city and not properly covered, being used by a lessee of the premises for the benefit for which it was excavated, and, in consequence of a defective covering, a person passing by went through and was injured, the lessee was held liable separately or jointly with the lessor for the injuries resulting. Irvine v. Wood, 51 N. Y. 224.

The liability of landlord and tenant to third persons is very fully considered in Timlin v. Standard Oil Co., 126 N. Y. 514, distinguishing Edwards v. New York & Harlem Ry. Co., 98 N. Y. 245. It is held in the principal case that where the owner of premises knows, or, by the exercise of reasonable care, can ascertain, that they have upon them a nuisance, dangerous to the public or an adjoining owner, it is his duty to abate it before leasing the property; if he leases without doing this, he is liable to respond in damages to any one injured in consequence of the nuisance; and this is so although he did not create the nuisance. The same liability rests upon a tenant who sublets the premises knowing or being chargeable with knowledge of the existence of the nuisance.

ARTICLE X.

PARTNERS.

The rule as to the liability of one partner of a firm for the tortious acts of its members is clearly laid down in Cooley Elements of Torts, p. 33. He says: "Persons associated in business may jointly be liable for torts, though not all directly participating in

Art. 10. Partners.

the commission thereof. But the circumstances must be such that the assent of all to the wrongful act is to be implied. The fact that two or more persons are partners in business does not raise a presumption that each of them makes the others his agent for the commission of wrongs upon third persons. A partnership has lawful objects in view; and the implied authority of each to act for all goes no farther than to give sanction to such steps as have in view the accomplishment of those objects; to that extent all are liable. Therefore, for a false warranty in a sale, a deception in making a purchase, and the like, where what is done is a partnership transaction, though done by a single partner, without the presence or knowledge of others, or even by an agent acting under partnership authority, all will be responsible; while on the other hand an act of violence committed by a partner, or any wrong not a part of a partnership transaction and not accompanied by circumstances of apparent sanction by the associates to justify its being imputed to all, is to be deemed the wrong only of the party committing it."

A firm is liable for any loss or injury caused to any person not a member of the firm, or for any penalty incurred for any wrongful act or omission of the person acting in the ordinary course of the business of the firm, or with the authority of his copartners. 22 Am. Encyc. 166.

A firm is liable for the fraudulent misappropriation of the funds, and the like, committed by one of the partners in the course of the business and within the scope of his usual authority, even though no benefit be derived therefrom by the other partners, but the firm is not liable if the transaction undertaken by the defaulting partner is outside the partnership business. Pollock on Torts, 114; Church v. Sparrow, 5 Wend. 223.

If one partner commits a fraud in the course of the partnership business all the partners may be liable therefor, although they may not all have concurred in the act; so if one of a firm of commission merchants sells goods consigned to the firm, fraudulently, or in violation of the agreement, all the partners are liable. Castle v. Bullard, 23 How. (U. S.) 172 (189), citing Story on Part., § 166; Nicoll v. Glennie, 1 Maule & Selw. 568; Olmsted v. Hotaling, 1 Hill, 318. The latter case holds that it does not lie with one to claim property through the fraudulent act of another, whether as agent or partner, without being affected by that act in a civil action the same as if it were his own.

Art. 10. Partners.

All partners are liable for the frauds committed by either in the transaction and prosecution of the partnership enterprise. It is well settled that the firm is bound for the tort committed by one partner in the course of the transactions in business of the partnership, even when the other partners have not the slightest connection with, or knowledge of, or participation in the fraud. Chester v. Dickerson, 54 N. Y. 1 (11), citing Griswold v. Haven, 25 N. Y. 595.

It is elementary .aw that all partners are chargeable and legally responsible for the fraud perpetrated by one of their number in the transaction of the partnership business and the conduct of partnership affairs. Bradner v. Strang, 89 N. Y. 299 (306.)

The principle of agency applies to copartners; but it is only when it can be seen that a partner is, in fact, acting as an agent of his copartners, that he binds them. In Lindley on Part. the doctrine of a copartner's liability is explained and is limited to cases where the partner, whose agency is relied upon, is acting on behalf of his firm. It is there said (p. 289): "Where one member is acting beyond his power, or is conducting a fraud on his partners, or is the person whose duty it is to give his firm notice of what he himself has done, in all such cases notice on his part is not equivalent to notice by them." Bienenstok v. Ammidown, 155 N. Y. 47, 57, 58.

The act of one in a business which constitutes the subject-matter of the partnership is the act of the other partners. If one of two persons who are partners collects money and absconds with it that forms no defense to the other partner. McFarland v. Crery, 8 Cow. 253.

Where one partner acts for a firm in demanding and collecting illegal charges every member of the firm is liable for the damage. Lockwood v. Bartlett, 7 N. Y. Supp. 481, affirmed 130 N. Y. 340.

The principle underlying the liability of one partner for the tortious act of another is governed by principles of law of agency. Like the liability of a master for the tortious act of his servant, it is confined within the limits of the implied authority with which each partner is vested by virtue of the partnership relations. Farrell v. Friedlander, 63 Hun, 254, 18 N. Y. Supp. 215. The judge adds: “I cannot find any case which goes to the extent of holding that the malicious prosecution of offenders had been admitted to be

Art. 10. Partners.

within the power delegated to one partner as the agent of another." Citing Mali v. Lord, 39 N. Y. 381.

Where members of a firm, in their firm name, organize a corporation, each partner is liable for the misrepresentations and concealments of the others committed while engaged in the partnership enterprise. Walker v. Anglo-American Mortgage & Trust Co., 72 Hun, 334, 25 N. Y. Supp. 432, citing Getty v. Devlin, 54 N. Y. 403.

A partner who holds money in his individual right in trust for another cannot subject the firm to an action for the money by applying it to the use of the firm without the knowledge or privity of the other members of the firm; otherwise, where it is applied with their knowledge or privity. Shaffer v. Martin, 25 App. Div. 501– 506, 49 N. Y. Supp. 853, citing Jacques' Assignee v. Marquand, 6 Cow. 497.

In McGarragher v. Gaskell, 42 Hun, 451, where a journeyman blacksmith was injured by the careless act of one of the members of the firm, it was held that the copartners were liable, citing Stroher v. Elting, 97 N. Y. 102.

Where a firm took securities from one of its members as trustee, to secure a loan made to such member, in an action by the true owner against the firm, it was held that a recovery could be had upon the ground that the knowledge of the partner holding the securities was the knowledge of the firm; or, in any event, threw upon the firm the burden of showing good faith and absence of notice as to the ownership of the securities. Randall v. Knevals, 27 App. Div. 146, 50 N. Y. Supp. 748; affirmed, on opinion below, 161 N. Y. 632.

All the members of a firm are answerable for a tort committed by their agent within the scope of his authority in the sale of partnership property. Locke v. Stearn, 1 Metc. 560.

The general doctrine of the joint and several liability of joint principals for torts applies to partners. Morgan v. Skidmore, 55 Barb. 263.

For a case holding that partners are liable for the false representations of an agent in the purchase of goods for partnership purposes, see Hunter v. Hudson River Iron & Machine Co., 20 Barb. 493.

It is held, however, that a fraudulent misrepresentation by a partner in the sale of his individual interest does not come within.