
    Caroline A. McCready, Respondent, v. David Lindenborn, Appellant.
    
      Trial—convenience of jurors considered on a motion for adjournment— a provison of a lease that repairs be completed by a certain date, qualified by one that the rent shall begin when the alterations are completed.
    
    The fact that a trial j udge consults the convenience of j uroi'S in denying a motion made by the defendant’s counsel for an adjournment on account of his illness, does not constitute reversible error, where the judge finally assumes the responsibility of deciding the motion and it appears that the defendant’s side of the controversy was fully argued and presented with great ability.
    A lease provided that certain alterations were to be made by the lessor, which were to be completed on the 1st day of October, 1894, and further provided that “in case the completion of the alterations above mentioned shall be delayed without fault * * * and the said building on the 1st day of October, 1894, be not tenantable and not occupied, then until such time as the building shall be occupied or the said alterations substantially completed, the rent above mentioned shall not be due, and in such case the rent shall begin when the alterations are completed or the occupation begins.”
    
      Held, that the fact that on October !, 1894, some outside painting, a railing for the stoop and similar small work remained to be done and was not finished until a few days thereafter, did not relieve the lessee from the obligations of the lease, a fair construction of the lease being that it was in the contemplation of the parties that a few additional days might be needed to complete the work during which the lessee was not to be liable for the rent.
    Appeal by the defendant, David Lindenborn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of December, 1897, upon the verdict of a jury, and also from an order bearing date the 20th day of December, 1897, and entered in said clerk’s -office, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover rent amounting to $480 for a part of the month of October, 1894, for the premises at No. 10 West Twenty-second street,' New York city. The complaint sets up an agreement in writing for a lease by which it appears that the defendant was to rent the premises mentioned for a term of nine years and seven months, rent payable monthly in advance at the rate of $6,400 a year, in addition to certain expenses to be borne by the defendant, including repairs and water rate up to May 1, 1899, an appraisal then to determine the amount of rent thereafter, on condition that the plaintiff should first make certain alterations agreed upon, amounting to $15,000, to change the building from a private dwelling to a place of business, the alterations to be completed-October 1, 1894, or in case the alterations were delayed, then when they should be substantially completed, the rent should begin. It was further understood between the parties that alterations in addition" to those contemplated to be made by the plaintiff might be made at the expense of the defendant. All the alterations were to be made with a view to adapting the building to the defendant’s needs.
    The plaintiff claims that, on October 1, 1894, the alterations to be made by her were “substantially completed” and the building was ready for occupancy, the alterations having been made as agreed and approved by both parties; that the keys were delivered to the defendant, but that he failed to pay the month’s rent from the-fourth day of October, from which date he was notified that the rent would begin. The defendant denies that the agreement referred tobas been duly carried out; that the alterations which were made by' the plaintiff were with his approval, or that the work was completed and the building ready for occupancy on October 1, 1894, or that the keys were given to him; and alleges that the changes made were not in accordance with the plans and specifications as agreed upon, but differently, and "were made against his will. The answer further made a counterclaim for $86,999.33, for damages for failure to-complete alterations agreed upon at the time mentioned, but this, counterclaim was withdrawn at the trial.
    
      Benno Loewy, for the appellant.
    
      W. P. Prentice, for the respondent.
   O’Brien, J.:

Upon the issues presented by the pleadings, involving questions-of fact rather than of law, there was a protracted trial extending over many days, on which the voluminous record on this appeal shows that, upon every material question, there was an irreconcilable conflict of testimony, which finally was resolved by the jury in. the-plaintiff’s favor.

In saying that the principal questions are those of fact and not of law, we have not overlooked the numberless exceptions taken to rulings upon evidence, or the many requests to charge proposed by the defendant, some of which were refused and some charged in a modified form. It would not only be impracticable to. discuss these exceptions at length, hut it is, also, unnecessary ; for although there may be a few instances of rulings to which, technically, an exception would lie, they are not such as would justify our reversing a judgment which was rendered after the material and substantial questions were properly presented to the jury. By way of illustration, much stress is placed upon an exception to the refusal of the court to grant an adjournment on the ground of the sickness of the defendant’s attorney. Counsel stated that he was ill, and had been without sleep the night before and desired an adjournment with a view to obtaining needed rest. There was present assisting him upon the trial another lawyer who, though not as familiar with the pleadings or the facts, having been brought in for the first time ujion the trial, was able to and did assist; and the record shows that both counsel not only represented the defendant with ability, but stubbornly and closely contested every position taken by the plaintiff. The refusal to grant the adjournment was apparently due to the objection of the jurors, whose convenience was consulted by the judge, and who w'ere opposed to the granting of such adjournment. It was not reversible error to consult the jurors, the judge having finally to assume the responsibility of deciding the motion, which he did. The question presented for our determination is, was the ruling wrongful ? This in turn is to be determined by a consideration whether or not the defendant suffered or was prejudiced. Considering the zeal and ability which at every stage of the trial was exhibited by both counsel represen ting him, it cannot be concluded that he was prejudiced by not having his case fully argued and presented to the jury.

We come back, therefore, in deciding the merits of this appeal, to a consideration of the questions of fact; and this involves a determination whether the burden placed upon the plaintiff was sustained at the time the motion was made to dismiss the complaint at the end of the plaintiff’s testimony, or whether, upon all the proof, including that thereafter submitted by the defendant, the ver■diet rendered in fay-or of the plaintiff was against the weight of •evidence.

Considering the obligations assumed by the plaintiff under the lease, it was incumbent upon her to prove, before a recovery could be had, a substantial performance of the covenants of the lease, particularly those relating to the alterations of the building, and the time when the building w-as ready for occupancy. This necessarily requires a review of the evidence, and without attempting to give a detailed presentation we must content ourselves with noting the leading facts and the manner in which the learned trial judge ■submitted them to the jury.

After the lease was made the jirivilege was given to and exercised by the defendant of selecting an architect, and the builder was a man of whom he approved. The plans and specifications were drawn up and accepted by both parties, and the architect then discovered that the alterations as arranged could not be made within the stipulated $15,000, the builder’s estimates being about $20,000. After notice and opportunity for the parties to examine the specifications and plans a meeting was held in the architect’s office on the afternoon of June 27, 189Í, which was attended by all the parties interested, for the purpose of modifying them so that the alterations to be made by the plaintiff should come within the sum of $15,000. At this meeting the parties had the plans and specifications, excepting the specifications for the plumbing work — although it was testified that there was present a memorandum of the plumbing work — and went over them in detail, and, as appears from the erasures made in the specifications, each item was examined.

According to the plaintiff’s version the plans and specifications were thus modified with the defendant’s assent and the matter left with the architect to obtain estimates and make contracts with the builder. The plaintiff’s witnesses testified that among the things left out were the elevator and the extension of the vault under the sidewalk; and that it was understood that if the defendant desired these things he was to pay for them himself. The architect’s assistant particularly testified that Hr. Lindenborn said “to get them done, as far as we thought we had to, and if there was anything he wanted in addition he would pay for it * * * Hr. Lindenborn agreed, on the 27th of June, that the work should be cut down so as not to exceed §15,000. * * * On the 27th of June it was, determined that to build the building with elevator the cost would far exceed $15,000; therefore, it was agreed that an elevator shaft would be built so that an elevator could be added at any future time, as eventually was, and also that Mr. Lindenborn would be satisfied with a hoist.” The defendant, although admitting being present and taking part in the modification and discussion of the proposed changes, insists that he did not give his full assent, or any assent, to such revised plans and specifications for the reason that he did not have ample opportunity to examine them for the purpose of determining whether he would or would not approve them. The defendant testified that at the meeting of June twenty-seventh he particularly objected to omitting the elevator; that he never made any suggestion as to a “ hoist,” and that he insisted upon having a vault under the sidewalk. In other words, he directly contradicts the plaintiff’s witnesses, not only in regard to the changes proposed, but also with regard to the plans and specifications, which he insists he was to-examine further before approval. The defendant also stated that, he never intended to put in his own heating apparatus, and denied that he had, since June, made any requests as to the alterations or approved the work as done.

What took place at the meeting of June twenty-seventh is of importance, for from that date followed an acrimonious dispute, not. only between the defendant and the plaintiff represented by her attorney, but also between the defendant and the architect, commencing. on the next day after the meeting, when the defendant returned to the office of the architect, charged him with having treated him unfairly, and, both verbally then and by letters sent, one on that day and the others on days immediately following, demanded that the plans and specifications be again submitted to him as matter of right, with a view to further examination to determine whether or not he would approve them as modified. The architect in answer offered the drawings over night, and gave as a reason for not leaving them longer with the defendant that they were needed in order that the work should progress and the builder be enabled to complete the alterations by October first, and further insisted that, as the defendant had already consented to the modifications, it was useless to submit them for further discussion or dispnte. There is testimony to the effect that a copy of micorrected drawings was later given to the defendant, which he retained and gave to his attorneys, and which upon the trial were used as exhibits.

By the letter of July third, the defendant was notified by the plaintiff’s attorney that final estimates had been submitted by the builder, the letter stating that as these estimates were still in excess ■of $15,000, it was proposed to substitute for an elevator a safety hoist, and also to dispense with a vault under the street, which would ■still leave the amount above $15,000, but that the plaintiff would pay the same; and also stated, If you desire to make any further ■suggestions or to omit any other items of expense, so as to retain either of the two above specified, please submit your suggestions in writing at Mr. Fickeu’s office by noon of Thursday, July 5th, 1894, to which hour and place the signing of the contracts has been adjourned.” The attorney testified: That letter was written ■on the 3rd of July at Mr. Ficken’s office * * * at the time appointed for the signing of the contracts. Mr. Lindenborn was to have been there, * * * but on that day he was not there. * * * We proposed to give him notice of the changes. * * * At the interview of June 27th Mr. Fichen suggested * * * that if Mr. Lindenborn had anything special he wanted to do he could get better rates when the main contracts were •signed. We sent him this notice in order that there might be no •mistake about what we were going to do. This was in accordance with what was to have been performed on the 27th of June,” To this letter the defendant replied on July fifth, saying that he had just returned to the city that afternoon, and also stating that he had not given approval of the work that was proposed.

The alterations as outlined by the letter were contracted for and work proceeded with due diligence, but there was some delay in the builder’s work by reason of interference by the building department, it being alleged that there was a violation of the laws; and this difficulty was removed by the architect’s filing modifications of the work and complying with the department rules.

The plaintiff’s witnesses further testified that, during the summer, the defendant made some requests relating to the alterations, particularly with regard to gas outlets, to the end that the work be personally superintended and duly completed; that the safety hoist was not pint in because the defendant never determined what kind of hoist lie wanted; that no steam heat was contemplated, as the defendant wanted to heat the building with Backus gas heaters ; that during the latter part of August the defendant requested permission to use a piart of the building to store some papier that he had bought, which request was granted, and the second or third floor front room was so used by him, the papier being removed, however prior to October first; that in September the defendant said that the building would not be completed in time, and that he would not take it. By letter dated September thirtieth the defendant notified the pfiaintiff that the building was incomplete and that he refused it, but made no mention of the absence of elevator or vault.

The actual expense incurred by the pilaintiff for the alterations was $16,757.49, and on October first there remained only some outside piainting, a railing for the stoop and similar small work to be done, all of which was finished shortly thereafter. The defendant was notified that rent would begin October fourth instead of October first, four days being allowed him to move in ; and the keys were given to the defendant’s brother, who shortly after returned them to the plaintiff by the defendant’s orders, and the defendant rented another building on Broadway, into which he moved his goods, refusing to pay the rent for which the suit was brought.

The many controversies between the parties are thus narrowed down to the questions as to whether the plans and specifications, according to which the building was altered, were approved by the defendant on June twenty-seventh, and, if so, whether the alterations were substantially completed by the 1st of October, 1894. ■

That the original pilons included an elevator, a vault under the sidewalk and some arrangement for heating, is not seriously questioned ; nor is it disputed that the work did not proceed for the reason that the cost would greatly exceed $15,000 ; and that, in order to bring the alterations within that sum, it was necessary that some modifications in the plans and specifications should be agreed upon, and the piarties met on June twenty-seventh and discussed such a reduction. The whole case mainly turns upon what occurred and what was agreed to on that date. It was essential that the elevator, vault, or some other feature of the building as planned should be omitted to reduce the cost of the alterations to be made by the plaintiff.

The plaintiff’s contention, supported by her witnesses, is.that the modified agreement, which was made ón that day, excluded from the plans the elevator, a heating apparatus, the vault first contemplated and some minor items. It is not disputed that, with these omitted, the final cost .to the plaintiff was $16,757.49. The defendant’s position is that he did not approve of any modified plans on Jnne twenty-seventh, and, further, that any agreement reached at such interview was thereafter arbitrarily altered by the plaintiff’s representatives, as shown by the letter of July third. In answer to this last suggestion, the plaintiff states that the said letter was not written with a view to making any changes from the June twenty-seventh agreement or obtaining the defendant’s approval, but to give him notice that she would proceed with the work, and that if he desired any substitutions before the builder’s contracts were closed she would accept propositions from him, but otherwise the alterations would proceed as had been determined on June twenty-seventh.

There is similar conflicting testimony upon the question whether the building was substantially completed and ready for occupancy on October first. It appeared that on October first some outside painting remained to be done ; that a railing had not been placed on the front stoop, and that other work was unfinished. And it cannot be denied that if the agreement of the plaintiff had been that the building should be actually ready for occupancy so that the defendant might have the use and enjoyment of the premises on that precise day, there would be force in the contention that what thus remained to be done was a material part of the work. It must be remembered, however, that the lease provided, not for actual completion of the work on that day, but that “ in case the completion of the alterations above mentioned shall be delayed without fault * * * and the said building on the first day of October, 1894, be not ten an table and not occupied, then until such time as the building shall be occupied or the said alterations substantially completed, the rent above mentioned shall not be due, and in such case the rent shall begin when the alterations are completed or the occupation begins.”

On the trial this provision was the cause of much discussion, which we do not think it would be of any advantage to extend in this opinion. If we credit the defendant’s statement as to what on that date remained to be done, the defendant could not take advantage of such failure to break the agreement, a fair construction of the provision quoted being that it was in the contemplation of the parties that a few additional days might be needed to fully complete, during which the defendant was not to be liable for rent. Of course, the failure to complete the work within a reasonable time from the date named would have entirely relieved the defendant from the obligations of the lease, but under its provisions some slight leeway was allowed to the plaintiff to fully complete.

Upon "all the questions there was direct conflict of testimony; and while upon some of them the defendant stood alone, the plaintiff in many instances was supported by two or three witnesses, whose credibility, like that of the defendant, was for the determination of the jury. The documentary evidence and letters, although bearing upon the questions involved, only accentuate the conflict produced by the oral testimony. Upon a review of the entire case, therefore, we think, as did the learned trial judge, that the questions in dispute were for the jury to settle; and that their verdict,, reached after weighing the evidence and having the benefit of the presence of the witnesses, we would not be justified in disturbing, in the absence of a showing that it was the result of prejudice, or that it was rendered in the face of a clear preponderance the other way.

We think, therefore, that the judgment and order should be affirmed, with costs.

Van Brunt, P.'J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.  