
    Charles A. Edwards, Resp’t, v. Alexander McLean, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed November 21, 1887.)
    
    1. Trial practice—Motion for non-suit.
    On a motion for a non-suit the evidence must he construed in the light most favorable to the plaintiff, and where different conclusions might he drawn by fair minded men from facts proved, it is the province of the jury to draw them.
    2. Same—Action for rent—Infection as defense to.
    The defendant, in an action for the rent of a house which he had leased-hut never occupied, as one defense claimed that the house had been infected, and that the infection was likely to continue. The infection occurred without the fault of the plaintiff long after the exeeulion and delivery of the lease, which contained no covenant as to the fitness of the premises for occupation as a dwelling. Held, that the defense was properly overruled.
    Appeal from a judgment entered upon a verdict of a jury and from order denying defendant’s motion for a new trial.
    
      Walter Edwards, for resp’t; Charles McLean, for app’lt.
   Freedman, J.

—The action is for the recovery of rent. The difference between the two counterparts of the lease is not material. They both bear date March 28th, 1885, and under them the defendant was to have possession on the first day of June in that year. At the time of their execution the dwelling house was, to the knowledge of both parties, in the possession of a tenant of the plaintiff.

In the case of the lease delivered to the defendant the legal implication is, what in the lease retained by the plaintiff is expressed by the word ‘ ‘ substantially? ” The dwelling house was, therefore, to be delivered furnished substantially as it then was, but with the further qualification expressed in the following words which are contained in both leases, viz.: “ But more particularly described in a certain inventory which is to accompany and form a part of this lease.”

Evidence was given on the part of the plaintiff, without objection on the part of the defendant, to the effect that at the time of the execution of the leases the inventory was in plaintiff’s desk, that the defendant did not ask for it, that for this reason the plaintiff did not give it and that, generally, it is not given. The plaintiff also testified that he had the inventory with him at the trial.

Now if that inventory had been offered and received in evidence, the jury might have found upon a consideration of all the circumstances surrounding the execution of the leases, that the inventory referred to constituted part of the contract between the parties. But the plaintiff never offered it, and the defendant did not call for its production.

The following question propounded to the plaintiff, viz.: (“ Q. Was all the furniture in the house on the first day of June, which had been in when Dr. McLean saw it, which belonged to you, which was included in the inventory referred to in the lease?”), was, on defendant’s objection; excluded by the trial judge, “unless knowledege of the contents of the inventory be in some way brought home to the defendant,” to which ruling the plaintiff excepted.

After this ruling both parties went on to litigate, and they did litigate the question whether, irrespective of the existence of any inventory, there was or was not, the required amount of furniture in the house at the time the defendant had obligated himself to take it. Upon this point the defendant contended, and a number of exceptions-taken by him were taken upon the theory that he was strictly entitled to every piece of furniture, no matter how insignificant, which at the time of the execution of the leases was in the house, whether owned by the plaintiff or by the tenant then in possession, while the plaintiff contended that he performed his part, if the house was furnished substantially as it was at the time of the execution of the leases. The trial judge submitted the question to the jury upon the evidence given on both sides, and with the instruction that if the jury believed, “ that the house as offered to the defendant, June 1, 1885, was not furnished substantially as it was when the lease was executed, they must find for the defendant.

Of this disposition of the case the defendant has no right to complain. In view of the conceded fact that he refused to take possession, the defendant was not entitled, at the close of plaintiff’s case, to have the complaint dismissed, because, under the operation of the rule that on a motion for a non-suit, the evidence must be construed in the light most favorable to the plaintiff, and that where different conclusions might be drawn by fair-minded men from a certain state of facts, it is the province of the jury to draw them, the plaintiff -had made out at least a case for the jury. On the other hand, at the close of the evidence on both sides, the defendant made no motion for the direction of a verdict, and acquiesced in the submission of the question referred to to the jury. Under all the circumstances the proceédings at the trial were fully, if not more so, as fair and favorable to the defendant as he could rightfully claim, and the verdict of the jury represents substantial justice.

No reason appears why the verdict should be disturbed.

The defense based on the claim that the house had been infected and that the infection was likely to continue was properly overruled, because the infection occurred without the fault of the plaintiff long after the execution and delivery of the leases, and the leases contained no covenant as to the fitness of the premises for occupation as a dwelling. See Franklin v. Brown, 1 N. Y. State Rep., 701.

None of the exceptions taken being tenable, the judgment and order appealed from should be affirmed, with costs.

Sedgwick, Ch. J., concurs.

Truax, J.

(dissents).—It was not disputed on the trial that the house did not contain the furniture that was in it at the time the lease was made.

There was no dispute about which of the articles were not there, and therefore under the facts in the case it became a question of law for the trial judge to determine whether the house was or was not substantially furnished as it was at the time the lease was made?

This question was fairly presented to the court by the motion to dismiss, and should then have been decided in favor of the defendant.

This view of the law renders it unnecessary for us to determine whether the lease delivered to the plaintiff or the lease delivered to the defendant is the controlling lease in the case. Taking the plaintiff’s lease as the controlling one in the case, the evidence shows that the plaintiff did not comply with his lease.

The judgment and order appealed from are reversed and a new trial ordered, with costs to the appellant to abide the event.  