
    Charles E. Travis, Resp’t, v. Edward M. L. Ehlers, et al., as Executors, etc., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    Evidence—Admission in tleadinq.
    In an action on a covenant in a lease, it is not necessary to offer the lease in evidence, where all that the plaintiff desires to establish by it is admitted in the answer.
    Appeal from a judgment in favor of plaintiff.
    
      Joseph C. Crane, for app’lts; Arthur Furber, for resp’t.
   Pratt, J.

This action was brought upon a covenant in a lease, and a copy of the lease was set outi in the complaint. Two of the defendants, Ehlers and Warner, put the lease in issue by the following words in their answer, to wit:

“(1) The defendants admit that, on or about the time mentioned •and set forth in said complaint, the plaintiff leased to one Bernard Travis, now deceased, the house and lot known as ‘No. 30 East 127th street,’ in the city of New York; but the defendants deny, upon information and belief that tlie said lease is in all respects correctly mentioned and set forth in said complaint, and for greater certainty as to its provisions they beg leave to refer to the original, or the record thereof, when produced on the trial of this action."

The plaintiff upon the trial failed to put the original lease in evidence, and now the defendants raise the point that the plaintiff failed to prove his case, and ask that the judgment be reversed, although upon the trial the court found as a fact:

“(1) That on the 24th day of July, 1894, by an indenture in writing, made under seal, the plaintiff leased to one Bernard Travis, and Bernard Travis hired from the plaintiff, the house and lot known as ‘No. 30 East 127th street,’ in the city of New York, for the term of his (Bernard Travis’) natural life, and that in and by said indenture said Bernard Travis, among other things, covenanted with plaintiff to pay and discharge a certain mortgage, which was then a lien upon the said premises, and which was given to secure the payment of the sum of $4,500 on the 1st day of May, 1884, with interest."

It was plainly an oversight on the part of the plaintiff in failing to offer the original lease in evidence; and might be fatal to judgment, were it not for the admission of the defendants contained in their answer. Among other matters contained in their answer is the following:

“(2) Defendants admit that the said Bernard Travis, in and by the terms and conditions of said lease dated on or about the 24th day of July, 1884, thereby covenanted and agreed to pay a certain mortgage made by one Eliza A. Travis, and the bond accompanying the same, bearing date the 13th day of April, 1880, to secure the payment of the sum of $4,500 on the 1st day of May, 1881, and recorded in the office of the register of the city and county of New York on the 22d day of April, 1888, in-liber 1503 of Mortgages, p. 6."

This admission plainly identified the lease, and contained all that was necessary on the part of plaintiff to prove his case. It was an admission of the vital part of the case necessary to maintain the action, and contained the covenant upon which the suit was brought. We can justly infer that the existence of the lease was taken for granted upon the trial, as well from the fact that the judge specifically found as from the fact that it was not produced. It was not necessary to produce the lease after all that the plaintiff desired to prove from it had been admitted. There is no exception in the case, and no error. In fact, the defendants failed to prove any fact to impeach thewalidity of the judg. ment. It was no defense to assert that plaintiff paid off the mortgage voluntarily after a demand upon the executors, and their refusal to pay, as his property was liable for the mortgage in the first instance, and he had a right to discharge the lien.

Judgment affirmed, with costs.  