
    John R. Bayles, Appellant, v. John G. Clark, Defendant, Impleaded with Julia M. Clark, Respondent.
    Second Department,
    September 28, 1906.
    Landlord and tenant — failure to establish, fraudulent misrepresentation by landlord — representations subsequent to lease immaterial.
    When a tenant has had free opportunity to examine the premises before leasing the same, a statement by the landlord that the roof had been repaired and was now all right, although in fact the roof subsequently leaked, does not establish such fraudulent misrepresentation as justifies an abandonment by the tenant in the absence of proof that the representation was fraudulent to the knowledge of the landlord.
    When before such representation the tenant enters under an oral lease for one year without a covenant that the premises are in repair, and pays a month’s rent in advance, such alleged misrepresentation, although used as an inducement to the subsequent execution of a written lease, is immaterial, for in any event there was an enforcible oral lease prior to the representation.
    Appeal by the plaintiff, John R. Bayles, from a judgment of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 27th day of December, 1905, and also from an order entered in said clerk’s office on the 10th day of January, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Leslie A. Davis [Charles H. Street with him on the brief], for the appellant."
    
      Rowland Miles, for the respondent.
   Woodward, J.:

This action was brought to recover one hundred and fifty, dollars rent, for certain premises situated at Echo, Suffolk county. The "action was brought in Justice’s Court, resulting in a verdict for the plaintiff. On an appeal for a new trial in the County Court, the trial was held on the 11th day of December, 1905, resulting in a verdict for the plaintiff for twenty-five dollars, and as this did not carry costs, the plaintiff is appealing from the' judgment entered' against him for the sum of forty-eight dollars and twenty-eight cents. The undisputed facts are that the plaintiff was the owner of’ the.premises demised to the defendants; that the defendants some time prior to the 15th day of May, 1903, visited the premises and examined them with a view of renting the same; that they looked through the house, no effort being made to prevent them going into any part of the same, and that they agreed to take tlie same at the price then named by the plaintiff ; that they did enter into possession of the premises on the 15th day of May, 1903, paying twenty-five dollars in advancethat- on the twenty-fifth day of May the parties entered into a written lease, which recited that the term was to commence on the 15th day of May, 1903, and to end on the fourteenth day of May one year later. There was also embodied in this lease an option to purchase, but it has no bearing upon the question here involved. The defendants,-who were in possession under the Conditions which were afterward embodied in the written lease, remained in possession,, paying rent except for one month, up" to-“just before” September 15, 1903, when they delivered the key of the house, not to the plaintiff’s agent or himself, but to the village postmaster, and-abandoned the premises. The defense now urged, and which counsel concedes was the theory upon which the case was tried, is that the plaintiff was guilty of fraudulent misrepresentations, inducing the defendants-to sign- the lease under such misrepresentations, and the jury has found in favor'of.the defendants, except as to the- one month during which' the premises were occupied and for which no rent was paid, and the plaintiff appeals from the judgment.

The fraudulent representations alleged, and which may he deemed .to have been established, consisted in the plaintiff stating that the house, which showed evidences of being out of repair so that the roof leaked, liad been repaired and that it was now all right. There is no evidence .whatever that this representation was false to the knowledge of the plaintiffit is not questioned that repairs had been made, and there is no evidence that the plaintiff did not have reason to be'lieve the repairs had accomplished the purpose. .There is some evidence that the roof did, in fact, leak after the defendants had been in possession for some time, but there was no covenant in the lease that the premises were in good repair or th<it they were fit for the purpose intended, and it being conceded that the premises had undergone repairs it.is difficult to understand how,' under the evidence, the plaintiff can be said to have been guilty of fraudulent misrepresentations, as that term is understood in the jurisprudence of this State. But independently of this we are of opinion that the defendants are not in a position to urge the alleged fraud. They entered into possession and paid one month’s rent on the fifteenth day of May ; their term dated from that day and the contract was complete when they had entered into possession and complied with the' terms of rental which had been agreed upon ; they were in possession under a verbal lease for a period of one year, and the contract had been fully performed on the part of the plaintiff and was in the course of performance on the part of the defendants when the alleged 'false representations were made. In other words, if there had been no written lease at all, the defendants would have been liable for the rent for a period of one year, and there is no pretense that there were any false representations prior to the defendants entering into possession on the fifteenth day of May, and the alleged misrepresentations as an inducement to the signing of the lease are of no importance, for the lease was merely a written confirmation of the verbal letting which had already ripened into a complete obligation on the part of the defendants. It seems entirely clear to us that the alleged false representations were not fraudulent; that they were not made in bad faith, and that if they were, they did not alter the relations of the parties in the slightest degree, and that they cannot be urged as a defense to the plaintiff’s claim for rentals .up to the time that he took possession of the premises and sold the same after the' defendants had abandoned them.

The learned court in its charge to the jury injected some matters in reference to the statute- which permits tenants to surrender premises which have become untenantable owing to the action of the .elements, but this has obviously nothing to do' with the case at bar where there can be no doubt that if the roof actually leaked, ■ as it is claimed, the condition existed at the time the defendants went into possession. It is not necessary to discuss this question, as there was no exception to the main charge where this matter occurred-, but it serves to show that the plaintiff was wronged by a submission of the question to tire jury, and justifies-a reversal of the judgment. The plaintiff moved for the direction of a verdict in his favor for the amount of the claim,, and the evidence did not justify any other disposition of the case. It was error to let, the jury speculate upon a question where there was no dispute as to the material facts, and the facts of this case do not constitute a defense to the plaintiff’s cause of action.

The judgment and order of the County Court of Suffolk county should be reversed, and a new trial ordered, costs to abide the event.

Jerks, Gaynor and Miller, JJ., concurred; Hooker, J„, concurred in result.

Judgment and order of the County Court of Suffolk county reversed,, and new trial ordered, costs to abide the event. 
      
      See Real Prop. Law (Laws of 1896, chap. 547), § 197.— [Rep.
     