
    Charles Slocum, Resp’t, v. Egbert M. Slocum, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    
      1. Evidence — Depositions.
    An error in the admission in evidence of a deposition without the necessary preliminary proof is not ground for reversal, where the witness whose deposition was taken was afterwards produced and testified orally to the same facts.
    2. Lease — Repairs.
    Where the terms of an oral lease of premises were in dispute, plaintiff claiming that the rent was to be $200, with a rebate of fifty dollars in case certain wood was made into charcoal, and that plaintiff was to be allowed for repairs, and defendant that the fifty dollars was to include the making of charcoal and repairs to the building, and it appeared that the repairs largely exceeded the entire rent, Held, that a finding in favor of plaintiff was justified by the probabilities of the case.
    
      Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    ■ Action to recover for work done and money paid in repairing a building under an alleged contract with defendant, by which plaintiff was to have possession of the premises for one year for $150 and to assist in making certain cordwood into charcoal, and to furnish materials, build and repair certain buildings on the premises, and defendant agreed to repay the amount of such materials and repairs except plaintiff’s personal services.
    Plaintiff offered in evidence a deposition made before trial by Ira Slocum, which was received after objection without any preliminary evidence as to the death of the witness or otherwise. The witness afterwards was sworn and gave evidence in the case.
    
      Cf. & Gr. H. Williams, for app’lt; William Downing, for .resp’t.
   Barnard, P. J.

The admission of the deposition of Ira Slocum was not proper. Code, § 882. The error did no harm. The witness whose deposition was .taken was produced and testified orally before the referee to the same facts as were returned in the commission.

The point in dispute was only whether the defendant rented the farm in question to the plaintiff, or to the plaintiff’s father, Ira Slocum. The plaintiff and Ira Slocum both testified to the renting to the plaintiff, and while the defendant wishes to state and even does state that the renting was to Ira Slocum, he virtually admits that Ira Slocum mentioned Charles in connection with the renting, and that the defendant cautioned his father, Ira Slocum, in respect to the plaintiff as an unreliable tenant. The defendant owned the farm, and ought to have the rent, and this fact supports the finding that the contract was really made by the owner to the party who was to pay rent to the owner for his use. The terms of the agreement are somewhat in dispute. The rent was to be $200, and fifty dollars was to be abated if the tenant (plaintiff), made some wood into charcoal. The chief dispute arose as to the repair of certain buildings and appurtenances for distillery. The plaintiff gave evidence to show that the lumber for this purpose and the fixtures and labor other than his own was to be paid for at cost. The witnesses vary in their testimony in this respect; the plaintiff and his father say that this work was to be repaid to the plaintiff and the defendant testifies that the fifty dollars was to include both making of charcoal and the repairs to the building. The finding of the referee is justified by the probabilities of the case. The repairs actually cost $379.98, apart from the plaintiff’s own labor, and it is not a judicious inference that a tenant would bind himself to pay so much in excess of the rent for the permanent betterment of the land upon a lease for one year only.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  