McCulloch v. Dobson — 39 N.Y. St. Rep. 907

Majority

p. 907

Robert McCulloch, App’lt, v. James Dobson et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Lease—Rep axes by lessee.

In an action for injury to the premises by the neglect of defendants to keep and perform the covenants of a lease as to repairs, the answer contained a denial and set up a counterclaim for repairs done on the employment of the lessor. The evidence was conflicting, but defendants’ testimony was express that plaintiff told them to get the place put in order and charge it to him. Held,, that a judgment in favor of defendants would not be disturbed.

Appeal from judgment in favor of defendants, entered on the report of a referee.

Benno Loewy, for app’lt; George L. Carlisle, for resp’ts.

—On the 4th of September, 1884, the plaintiff leased to the defendants a mill in Rockland county for the term of two years from 30th of September, 1884. The lease had a privilege of renewal for an additional term of three years. The rent was $5,000 a year, payable half yearly in advance. The machinery was included in the leasing, and it was agreed that the premises should be in good repair before the defendants took possession. The defendants were to keep the demised property in repair and to surrender at the end of the term in as good state and condition “ as reasonable use and wear thereof will permit.” There was a provision in the lease that if the defendants run the mill overtime the additional insurance risk should be paid by defendants. The occupancy was_ only for the two years. The action is-brought to recover for injury done to the premises and machinery by the neglect of the defendants to keep and perform the covenants as to the repairs of the property. The claim is a large one, amounting to $11,500. There is also a claim made for $300 additional insurance by reason of the mill running overtime. The answer denies the claims in respect to the failure to keep the property in repair, and avers by way of counterclaim that the property was not delivered in good repair; that there was false representation made as to the power of the mill, and that the defendants were employed by the plaintiff to make repairs on the premises, and that they did so to the value of $2,500.

The action was referred by consent and the referee has found that the defendants made repairs upon the premises of plaintiff .and are entitled to pay therefor to the amount of $2,413.15. That -the property was delivered back to the plaintiff in as good condition as reasonable use would permit and in a better condition than it was received by the amount of the repairs made by the defendants under plaintiff’s permission. That there was a failure to deliver twenty dollars worth of the property; that the defendants caused additional insurance to the amount of $362.12. That ■there was a misrepresentation as to the power of the mill, but that the damage therefor could not be estimated from the proof.

The referee gave judgment in favor of the defendants for the ;sum of $2,031.03, being the balance due them after deducting the

p. 908

insurance and non-returned property. The findings cover the issues and all of them. The requests which were not passed upon are all which respects the evidence which bear upon the issues tried. The lease is annexed to the defendants’ answer and no finding as to its terms was needed. Whatever finding was proposed by the plaintiff may be considered as denied and no legal injury would result. The testimony upon the part of defendants is express that the plaintiff told defendant, “You get the place put in order and charge it to me.” While the evidence is conflicting, there is no such preponderance as will justify an appellate court in setting aside the report There is even sufficient evidence to support the finding to be gathered from the very voluminous record which is brought up by the appeal.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.