Call v. Case — 84 N.Y.S. 166

Majority

p. 166

CALL v. CASE.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Landlord and Tenant—Eviction—Surrender—Questions op Fact—Conflicting Evidence—Review.

Questions, in a suit for rent, as to whether the escape of smoke and sewer gas into the leased apartment amounted to an eviction, and as to whether the lease was canceled and the premises surrendered at the landlord’s request, are questions of fact, as to which the appellate court will not review conflicting evidence.

Appeal from City Court of New York.

Action by William Call against Elizabeth Gertrude Case. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

A. S. Gilbert, for appellant.

Avery, Schlessinger & Paul, for respondent.

This action was brought by the plaintiff to recover for four months’ rental of an apartment under a lease made by the defendant expiring October i, 1902, the defendant having surrendered the premises prior to May 1, 1902, and having paid the rent up to that time. The making of the lease and the amount of unpaid rent was admitted, and the sole issues submitted to the jury were two, viz.: (1) Whether there was a constructive eviction by reason of the escape of smoke and sewer gas into the apartment; and (2) whether the lease was canceled by the plaintiff, and the premises surrendered at his request. These were questions of fact (Hall v. Irvin, 78 App. Div. 107 , 79 N. Y. Supp. 614 ), and the testimony upon this question was conflicting, and the jury found in favor of the defendant. The testimony in the case contains 25 pages, and the charge of the judge 4, and not an objection or exception was taken by either party during the trial, or to any portion of the charge. The only exception appearing in the record is the one taken to the refusal of the trial judge to set aside the verdict and for a new trial, made by plaintiff’s counsel. Neither party made any request for the direction of a verdict, and there is not the slightest reason for claiming that the verdict is against the weight of evidence, and the judgment must be affirmed.

Judgment affirmed, with costs. All concur.