
    Frank Hillman et al., Respondents, v. Andre De Rosa, Appellant.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Appeal — Ruling on motion to strike out testimony — Presumption.
    Where the record on appeal does not disclose a ruling upon a motion to strike out testimony received over objection and exception, the appellate court must assume that it was granted.
    
      Where in an action for rent an issue is raised as to whether a surrender of the premises was unconditional or not, testimony that the landlord, in an action against him for rent of the same premises, made admissions to the effect that defendant’s absolute surrender of the premises had been accepted by him, is admissible, and if excluded a judgment for plaintiff will be reversed and a new trial granted.
    Appeal by the defendant from a judgment in favor of-the plaintiffs, rendered in the Municipal Court of the city of New York, thirteenth district, borough of Manhattan,
    B. F. Spellman, for appellant.
    M. Silverstein, for respondents.
   Scott, J.

This action is brought to recover rent of premises 256 South street, New York city, for the months of June and July, 1903. The defendant moved from these premises between June 8 and June 10, 1903. Thé plaintiffs claimed that the term did not expire until May 1, 1904. The defendant claimed that he had surrendered the premises to the plaintiffs between June 8 and June 10', 1903, and that the surrender was accepted unconditionally by the plaintiffs. On the other hand the plaintiffs claim that the acceptance by them of the surrender was conditioned upon the acceptance by their own lessor, one Hennessy, of the plaintiffs’ surrender.

In order to disprove this claim of the plaintiffs, the defendant offered in evidence certain testimony given by the plaintiffs in another action in the Municipal Court, in which the plaintiffs were sued for the rent of the same premises. The defendant here claimed that this testimony showed that the plaintiffs made admissions in that action to the effect that the defendant, De Rosa, had surrendered the premises absolutely and that they accepted the surrender.

The court below, under objection, admitted the testimony subject to a motion to strike out at' the end of the case. This •motion was made subsequently by the plaintiffs and the court reserved its decision. The record does not disclose the court’s ruling on this motion. We must, therefore, assume that it was in favor of the successful party, the plaintiffs. Herzfeld v. Reinach, 44 App. Div. 326, 328; Adams v. Elwood, 176 N. Y. 106. It follows, therefore, that the testimony was not admitted. An examination of the testimony thus excluded shows that it has a direct bearing on the issues presented on this trial, and for that reason should not have been excluded. Under the circumstances the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

MacLean and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  