Y. Supp. 915 ; or where one was injured by the falling of a fire wall and cornice in the part under the lessor's control ; O'Connor v. Curtis (Tex.) 18 S. W. 953; but he was not liable for injury caused by defective steps to one who had no reasonable excuse for en tering the house ; Hart v. Cole, 156 Mass. 475, 31 N. E. 644, 16 L. R. A. 557; nor to one who fell into a coal hole neither faulty in construction nor out .of repair ; Adams v. Fletcher, 17 R. I. 137, 20 Atl. 263, 33 Am. St. Rep. 859; contra, where the defect was not Droved to have existed at the beginning of the tenancy ; 57 L. J. Q. B. 507; but this decision was questioned; 55 Alb. L. J. 27.
Subject to these exceptions, the occupant and not the owner is liable for injuries for failure to keep the premises in repair ; Cald well v. Slade, 156 Mass. 84, 30 N. E. 87; to third persons rightfully upon the premises ; City of Peoria v. Simpson, 110 Ill. 294, 51 Am. Rep. 683 ; Campbell v. Sugar Co., 62 Me. 552, 16 Am. Rep. 503; whether such third persons be in a hotel kept by the tenant; Fellows v. Gilhuber, 82 Wis. 639, 52 N. W. 307, 17 L. R. A. 577; Hutchinson v. 'Cum mings, 156 Mass. 329, 31 N. E. 127; or per sons visiting the tenant socially ; Montieth v. Finkbeiner, 66 Hun 633, 21 N. Y. Supp. 288; or servants of the tenant ; Johnson v. Tacoma Cedar Lumber Co., 3 Wash. 722, 29 Pao. 451; McCarthy v. Foster, 156 Mass. 511, 31 N. E. 385; but where the landlord is in control of machinery within the leased building and furnishes the power for it, and is negligent in that regard, an employee of the tenant is entitled to recover ; Poor v. Sears, 154 Mass. 539; 28 N. E. 1046, 26 Am. St. Rep. 272. See APARTMENT ; FLAT.
The landlord, in the absence of any express covenant or agreement, is under no obliga tion to make any repairs; Weber v. Lieber man, 47 Misc. 593, 94 N. Y. Supp. 460; Tur ner v. Townsend, 42 Neb. 376, 60 N. W. 587 ; Huber v. Baum, 152 Pa. 626, 26 Atl. 101; and a promise to repair made by the landlord prior to the execution of the lease is merged in the latter and is not binding; Hall v. Beston, 16 Misc. 528, 38 N. Y. Supp. 979. A provision that repairs should be made at the tenant's expense, unless by special agree ment, the lessor agrees to pay for them binds the latter by a subsequent agreement to make them ; Peticolas v. Thomas, 9 Tex. Civ. App. 442, 29 S. W. 166; and where the les see agrees to do repairs with material to be furnished by the lessor he is bound by his undertaking, and performance is not excused by the lessor's failure to furnish the ma terial ; Wood v. Sharpless, 174 Pn. 588, 34
Atl. 319, 321. So a covenant by the lessor to keep the outside of the building in good repair obliges him to put it so; Miller v. Mc Carden, 19 R. I. 304, 33 Atl. 445, 30 L. R. A. 682.
In Philadelphia, by custom, certain sub stantial repairs are to be made by the land lord ; Scheerer v. Dickson, 7 Phila. (Pa.) 472; and it is said that a covenant by the lessor to repair includes the duty of re building in case of fire; Reno v. Mendenhall, 58 Ill. App. 87; McKinley v. Jutte & Co., 230 Pa. 122, 79 Atl. 244, Ann. Cas. 1912A, 452. And it is not in the power of a tenant to make repairs at the expense of his landlord, unless there be a special agreement to that effect ; Powell v. Beckley; 38 Neb. 157, 56 N. W. 974; Mumford v. Brown, 6 Cow. (N. Y.) 475, 16 Am. Dec. 440 ; Heintze v. Bentley, 34 N. J. Eq. 562 ; but if there is an agreement and a breach of it, the tenant may make the repairs and charge the expense to the land lord; Hexter v. Knox, 63 N. Y. 561; Diggs v. Maury, 23 La. Ann. 59; Ross v. Stock well, 19 Ind. App. 86, 49 N. E. 50. At com mon law, in the absence of an express cove nant in the lease, the lessor was not bound to rebuild structures which had become un fit for use; Felton v. Cincinnati, 95 Fed. 336, 37 C. C. A. 88; by reason of destruction by fire or accident ; Jackson v. Doll, 109 La. 230, 33 South. 207 ; Arbenz v. Exley, Watkins & Co., 52 W. Va. 476, 44 S. E. 149, 61 L. R. A. 957; Ducker v. Del Genovese, 93 App. Div. 575, 87 N. Y. Supp. 889. Even if the premises have become uninhabitable by fire, and the landlord, having insured them, has recovered the insurance money, the tenant cannot compel him to expend the money so recovered in rebuilding, unless he has expressly engaged to do so; nor can he, in such an event, protect himself from the payment of rent during the unexpired part of the term ; Jack. & G. L. & T. § 1049; Witty v. Matthews, 52 N. Y. 512; Loft v. Denis, 1 E. & E. 474; Leads v. Cheetham, 1 Sim. 146.
It has been held that even where the own er of a building had recovered on a fire policy the full loss sustained by the burning of his building caused by the storage of cot ton by his tenants in violation of their lease, he may sue and recover from the lessees for the damage to the building ; Anderson v. Miller, 96 Tenn. 35, 33 S. W. 615, 31 L. R. A. 604, 54 Am. St. Rep. 812.