
    PERKINS v. ALLEN.
    
    (Supreme Court, Appellate Term.
    June 28, 1899.)
    Appeal—Questions op Fact—Judgment—Conclusiveness.
    An appellate court will not reverse a judgment resting on disputed facts, unless clearly against the weight of the evidence, or an examination of the record discloses prejudice, passion, or partiality by the trial court.
    Appeal from municipal court, borough of Manhattan, Seventh district;
    
      Action by Mary S. Perkins against Ethan Allen. From a judgment allowing defendant a counterclaim, plaintiff appeals.
    Affirmed.
    Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.
    Baldwin & Blackmar, for appellant.
    Oppenheim & Severance, for respondent.
    
      
       For dissenting opinion, see 59 N. Y. Supp. 258.
    
   FREEDMAN, P. J.

In an action brought to recover the sum of $450 conceded to be due for rent of premises, the defendant was allowed a counterclaim, amounting to the sum of $200, for repairs done upon the premises, and from the judgment granting such allowance the plaintiff appeals.

An exhaustive and critical examination of the record does not convince me that the judgment in this case should be reversed. The defendant leased premises belonging to the plaintiff in May, 1896, for the term or three years from the 1st day of October following. He claims that at the time the lease was executed the plaintiff represented that the premises were in perfect condition, especially the plumbing; and although the lease contained a covenant allowing the tenant to expend the sum of $150 in “interior” repairs, and deduct the same from the rent, he was informed that no part of that sum would be required in putting the plumbing in condition, as that was then in perfect order. The defendant .entered into.possession of the premises in October, 1896. About this time what was called a “peppermint test” of the plumbing was made, and the plumber making it reported the pipes in perfect condition. The defendant expended the sum of $150 in painting, papering, etc. Subsequently himself and family were taken ill, and, upon the advice of his family physician, the defendant and his family removed from the house. After his removal, he employed a plumber to make another test, in order to learn the condition of the pipes; and it was then ascertained that the plumbing was in a very defective situation, that noxious gases were escaping, and that many repairs must be made to render the house fit for human habitation. These facts were communicated to the plaintiff, and several conversations were had between the parties relative to the making of the necessary repairs; the defendant at all times refusing to again occupy the house unless the same was made safe. The defendant testifies positively that the plaintiff authorized him to go on and have the proper work done, which he did, and which cost something over $250, and which amount was paid by the defendant. This authorization was denied by the plaintiff, and upon the question of fact thus raised the whole case hinges.

As- an evidence that the plaintiff did not direct the repairs to be made, it is urged that the defendant continued to pay the stipulated monthly rent for several months after such work was done, without making any claim to compensation for the amount paid by him for such repairs. This he reasonably explains by showing that he had no knowledge of the bill for such repairs until long after they were made, supposing that the bill had been paid by the plaintiff. It is also claimed that the testimony shows that the defendant ordered the work done by the plumber before any of the conversations were had between the parties regarding the work. In support of this, the attention of the defendant was called, upon his cross-examination, to the date and contents of a letter written by him to the plaintiff, which it is asserted shows that the defendant had previously ordered the work done; but the defendant, although not able to state definitely the exact time of the conversation had with the plaintiff, swears positively that the plaintiff' had authorized him to go ahead and have the repairs made, before the same was begun, and before he gave any directions regarding them. The repairs done by the defendant upon the premises were extensive and permanent, and were evidently not contemplated by either of the parties at the time of the execution of the lease.. They were of such a character as to inure for the benefit of the landlord for years. The trial judge allowed a much smaller amount than their actual cost. The refusal of the tenant to reoccupy the house until the same were made was a. sufficient consideration for the making of an agreement by the plaintiff authorizing the work to be done. The court below had the advantage (not possessed by this court) of seeing the witnesses, of observing their demeanor on the stand and the manner in which they gave their testimony, and thus was better able to judge what weight should be given to their evidence than could otherwise be obtained. In view of all the facts and circumstances disclosed by the testimony, I fail to see in what ^resnect injustice has been done the plaintiff. It is an often-quoted and well-settled rule that appellate courts will not reverse judgments resting upon disputed questions of fact, unless they are clearly against the weight of evidence, or an examination of the record discloses the manifestation of prejudice, passion, or partiality by the trial court. Such does not appear in the case at bar. I am therefore in favor of affirming the judgment.

LEVENTEITT, J., concurs. MacLEAN, J., dissents.  