
    Anna L. Humphreys, Respondent, v. Edith B. A. Roberts, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Deceit — Materiality of representations or matters concealed.
    In an action on a lease it is no defense that representations of the landlord that he himself was paying a certain rent for the premises induced the execution of the lease to plaintiff; but a representation that there was no restriction in plaintiff’s lease other than that the premises should not be used as a restaurant or saloon was of a material fact and, if false, was material to the defense of fraud in inducing the execution of the lease; and the exclusion of testimony thereof was error.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, ninth district, borough of Manhattan.
    Mackenzie & Burr, for appellant.
    I. H. Kramer, for respondent.
   Hendrick, J.

The defense alleged and sought to he proved was one of fraudulent representations inducing the execution of the lease. The representations relied upon were, firstly, that the lessor was paying $2,400 per annum as the rent of the premises, and, secondly, that there was no restriction in plaintiff’s lease other than that said premises should not be used as a restaurant or saloon. The trial court held that neither of said representations, if made, was a material statement and struck out the defense. The case of Rosenbaum v. Gunter, 3 E. D. Smith, 203, relied on by the respondent, and on the authority of which the trial court based its ruling, seems to be controlling as to the first alleged misrepresentation. But the representation in respect to restrictions was a representation of a material fact which it is claimed by defendant was an inducing cause of the execution of the lease and of the guaranty. If there were no restrictions in the plaintiff’s lease, the benefit of that state of facts would, of course, accrue to the defendant, and the value of those benefits is claimed as an inducement to the execution of the lease between the parties to this action. We believe that such representation, if false, was material to a defense of. fraud, and evidence thereof should have been admitted.

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

Giegerich, J., concurs in the result.

Ford, J.

(concurring). I concur in the result on the ground that the trial court erred in excluding evidence offered to prove both the alleged misrepresentations in respect of the amount of the rent reserved under plaintiff’s lease from her lessor (Powell v. Linde Co., 49 App. Div. 286), as well as in respect of the right to sublet.

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