
    Charles V. Morgan, Resp’t, v. Etta Goldberg et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    1. Appeal—Conflicting evidence.
    The common pleas will not overrule the decision of a justice of the district court on a direct conflict of evidence.
    3. Lease—Memorandum—Waiver.
    A paper, which is intended to be a mere memorandum to certify that the tenant had a lease, does not operate as a waiver of any of the terms of the original lease.
    Appeal from judgment of a district court in favor of landlord in a summary proceeding.
    
      Louis Steclder, for app’its; B. 0. Henderson, for resp’t.
   Pryor, J.

In a summary proceeding the tenant asserted a right of possession by virtue of a privilege of renewal. Bat, the privilege of renewal was conditioned on a written notice of at least ninety days before the expiration of the original term; and the trial court negatived the fact of the notice. The testimony on behalf of the tenant is of a character that vindicates the incredulity of the justice. Even upon paper it provokes suspicion ; but, then, doubtless the manner of the witnesses was indicative of their untruthfulness. In any event, it is not for ns to overrule the decision of the justice on so direct a conflict of evidence. Lynes v. Hickey, 4 Misc. 522 ; 54 St. Rep. 120.

Shortly after the death of the original lessee, upon a representation of his widow that her husband’s copy of the lease was lost and a request that the landlord would “give something to show that they had a lease,” he delivered this paper: “Received from Ettie Epstein the sum of sixty-five dollars on account of rent for house Ño. 248 East Broadway, leased for five years, with the privilege of five, commencing May 1st, 1888. Said premises are rented at the rate of seven hundred and twenty-five dollars ;” subscribed by the landlord. The appellants insist that here was a waiver of the stipulation for notice of renewal in the original lease; hut the contention is plainly untenable. On the contrary, the paper was a mere memorandum to certify the fact that the tenant had a lease. It was not intended as a surrender of the lease and the substitution of a new contract of letting; else assuredly its terms would have been more precise and complete. A lease of valuable property for a period of ten years, was never so drawn.

Judgment affirmed with costs.

Bookstaver, P. J., and Bisciioef, J., concur.  