
    John J. Green, App’lt, v. John Weckle, Resp’t.
    
      (Supreme Court, Appellate Term, First Department,
    
    
      Filed Feb. 26, 1896.)
    
    1. Appeal—Conflicting evidence.
    A verdict, rendered upon conflicting evidence, will not be disturbed on appeal as against the weight of evidence.
    2. Landlord and tenant—Receipts for rent.
    The fact that the receipts for rent, signed by the landlord, bore the words, ‘‘‘ Terms of letting, one month only,” does not show that the lease was not for a year, where the parties had actually agreed that it should be, and the conclusion that they had done so, is founded upon acceptable proof.
    8. Same—Statute of frauds.
    A verbal agreement between a landlord and tenant .that the tenancy, theretofore from month to month, should continue from May 1, 1895, to May 1, 1896, made after the accrual of the rent for April, 1895, is a lease for one year, to commence in futuro, and is not void under the statute of , frauds. ' •
    4. Same.
    In such case, the fact whether the tenant would have paid the rent for April, 1895, if the verbal agreement had not been made, is immaterial.
    Appeal from a final order on a verdict awarding possession to the tenant.
    W. E. Benjámin, for app’lt; A. E. Hageman for resp’t
   BISCHOFF, J.

The appellant sought to dispossess the res pondent upon the assumption that the latter held over his term as a monthly tenant after the statutory notice to quit had been given. The defense was that a verbal lease for one year had been entered into, and upon a direct conflict of evidence this defense prevailed. We are asked to reverse the order upon the evidence, but fail to find that the preponderance is with the appellant, and in consonance with familiar rules, the jury’s determination upon conflicting testimony is not to be disturbed.

The fact that the receipts for rent, signed by the landlord, bore words, “Terms of letting, one month only,” does • not show that the lease was not for a year, if the parties had actually agreed that • it should be, and the conclusion that they had is founded upon acceptable proof.

A point is made that the agreement was in contravention of the statute of frauds, in that it provided for a tenancy from May 1, 1895, to May 1, 1898, and that it was made while the tenant was in possession before the accrual of the April rent. Thus, it is that the verbal lease was for thirteen months instead of twelve, and so void. From the receipts in evidence, and from the understanding of the parties, it appears, without contradiction, that the April rent was payable in advance, and was therefore due prior to the date of the agreement which was made on the fourth day of that month. Therefore the lease was properly viewed as for a year, to commence in futuro, and, as such, was not repugnant to the statute. Moreover, the statute of frauds was not alluded to upon the trial, and the whole question litigated was as to the termination of the tenancy as to the five-days notice.

The appellant claims that there was error in the exclusion of a question asked the defendant, whether he would have paid his April rent if the verbal agreement of lease had not been made. The question, in view of the attitude taken upon the trial, certainly appeared to be immaterial, and was very vague, if supposed to touch the quéstion of the attitude of frauds; but, at all events, the exclusion was proper, since the duty to pay the rent at that time was apparent, and the matter was not, legally, one admitting' of a choice upon the defendant’s part.

Final order affirmed, with costs.  