Underhill v. Collins — 32 N.Y. St. Rep. 961

Majority

p. 961

Jeronemus S. Underhill, Resp’t, v. Samuel Collins, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Lease — Surrender.

In an action for rent of premises after defendant had abandoned them, the evidence as to whether there was a surrender and acceptance was conflicting, and the court charged that if the landlord rented the premises to other parties without notifying defendant that he should do so, the verdict must be for defendant. Held, that the fact that the keys were once refused by the plaintiff and were subsequently put on his desk in his absence was strong corroboration of plaintiff’s testimony, and that a verdict in his favor would not be disturbed.

p. 962

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes.

Action for rent under a lease for three years and seven months, from October 1, 1886. Defendant abandoned the premises about the middle of May, 1888, claiming that gambling was carried on upon the premises, which injured his business, and the action is for rent from that time, less two months, when the premises were rented to other parties.

Plaintiff testified that he refused to accept the surrender, and told defendant he woul^L hold him for the rent, and if necessary lease the premises for his benefit. This the defendant denied.

P. Q. Éckerson, for app’lt; Walter ¿S. Logan (Charles M. Demand, of counsel), for resp’t.

At request of defendant the court charged the jury that if the landlord rented the premises to other parties without notifying the defendant that he should do so, the verdict must be for the defendant.

There was testimony given by the plaintiff that he refused to-accept the surrender, and told defendant he would hold him for the rent. In view of the charge given, as above quoted, we must, understand that the jury believed the landlord’s evidence.

They were entirely justified in so doing. If defendant's liability was supposed to be of any value, no reason is apparent why the landlord should have been willing to release it. And the fact that the keys were once refused by the landlord, and at a subsequent time were put upon his desk in his absence, was strong corroboration of plaintiff’s testimony.

The court fairly left to the jury the question whether the landlord, assented to the surrender.

Mo error was committed, and the verdict must be affirmed, with, costs.

Barnard, P. J., and Dykman, J., concur.