
    Daniel E. Sickles, Respondent, v. John C. Shaw, Appellant.
    Appeal from a judgment entered upon verdict, and order denying motion to set the same aside, and for a new trial.
    John 0. Shaw, appellant, in person.
    Hays & Hershfield (Daniel P. Hays, of counsel), for respondent.
   Hascall, J.

Defendant was plaintiff’s tenant under written lease, the rent being “ payable in equal monthly payments of $116.66 each on the first day of every month during said term.” The agreement was for a term of ten months and twenty-four days, commencing November 6, 1899, to end September 30, 1900; so it appears that the first payment was due December 1, 1899, and those subsequent thereto on the first day of each succeeding month. In the absence of provision for rent in advance it became payable at the close of each month. The plaintiff claims to recover for the monthly installments becoming due August 1 and September 1, 1900, while the answer, denying that defendant failed to pay the rent from the first day, and that there is due the rent from the first day of August, demands that the complaint, as regards that item, be dismissed.

The only witness testifying at the trial, the plaintiff himself, said, “ I haven’t here any memorandum as to the amounts paid by Mr. Shaw during the term of this lease. My bookkeeper has it. * * * I cannot say how many payments were paid. I cannot state as to what the payment made on July 31st is for. I don’t' know what that payment was for. I presume it was for rent, etc. I know he left owing two months rent. This is all I can recall now. But my books will show. I haven’t got them here. I was not asked to bring them.”

Hnder full and proper proof, it is possible that plaintiff might recover all that he has demanded, but the testimony adduced did not sustain the complaint. The court was right in proceeding with the trial, as no good reasons, required by the rule, was shown for postponement; but we think the grounds upon which the judgment stands are insufficient to maintain it in its entirety.

The judgment and order appealed from should be modified by reducing the amount of recovery by the sum of $116.66, besides the costs and disbursements of this appeal, which must be allowed to the appellant, and, as so modified, affirmed.

O’Dwyer, J. (dissenting).

I cannot agree with Justice Has-call. The action was commenced July 17,1901, over nine months after the term created by the lease had expired, and the evidence abundantly shows, that the defendant was owing two months’ rent when the term expired. There is no doubt about that fact, and, although the complaint may incorrectly state the exact due date of the month’s rent, that mistake does not present reversible error; on the other hand, justice requires that the pleading be amended to conform to the proof, and the judgment and, order appealed from affirmed, with costs.

Reargument ordered.  