
    Bertha Koehler, Ex’rx, App’lt, v. Joseph Scheider, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 2, 1890.)
    
    
      1. Evidence—Code Oiv. Peo. § 830.
    The language of § 830 of the Code is sufficiently broad to include any former trial where evidence was given by a party since deceased which it is subsequently desired to use. •
    2. Lease—Notice to terminate—Effect of.
    Defendant held the premises under a verbal lease for one year In February plaintiff’s testator sent him a letter requiring him to vacate on or before April 30th. On March 1st defendant wrote, offering to surrender the keys, and removed. Held, error to rule that testator’s letter was a continuing offer to accept a surrender; that defendant’s letter could be construed to operate as a surrender, and that the lease came to an end March 1st.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of defendant.
    Action to recover rent.
    Hermann Koehler, in February, 1885, leased by paroi to Joseph Scheider the premises on the southwesterly corner of First avenue and Thirtieth street, in the city of New York, for the term of one year, at the yearly rent of $6,000, payable in equal monthly payments.
    Mr. Koehler, according to the defendant’s contention, agreed to furnish heat, steam power and water for 200 employees of Mr. Scheider, and water to drain the water closets on the demised premises.
    Mr. Scheider entered upon and occupied the premises under the letting.
    This action is brought to recover the rent for -the months of March and April, 1886.
    The defense is a general denial and constructive eviction.
    The tenant complained that the landlord failed to furnish steam power and heat, and also water for the hands to drink, and to flush and drain the water closets, and in consequence thereof abandoned the premises.
    
      Charles P. Daly and M. J. Myers, for app’lt; George TI. Yeaman and Maurice Rapp, for resp’t.
   Larremore, Oh. J.

There have already been so many trials of this case that it is to be regretted that the judgment must be again reversed. I think there was sufficient to go to the jury on the question of constructive eviction. I am also of opinion that it was not error to allow the testimony of plaintiff’s testator, given on the first trial of this action, to be read in evidence on the present trial. The contention of appellant seems to be that § 880 of the Code would allow only such testimony as was taken upon the trial immediately preceding this one; but I think the language of the section sufficiently broad to take in any former trial where evidence was given by a party since deceased, which it is subsequently desired .to use. There is nothing to show that such was not the intention of the legislature, and the opposite party always has the compensating privilege granted by § 829, of being himself examined orally as to any matters referred to in the testimony so read.

But the trial judge fell into one very grave error in his ■charge. It appears that on or about the 1st day of February, 1888, the landlord, being plaintiff’s' said testator, sent the following note to defendant, dated that day:

“ Dear Sir—I hereby beg to inform you that I desire you to vacate the premises on First avenue, which you now rent from me, on or before April 30, 1886.”

The trial judge told the jury that they might read this letter in connection with the following one of March 1, 1886, from the defendant:

“Mr. H. Koehler:

“Dear Sir—We hereby surrender you the keys of premises occupied by us, and give you full possession. The premises being untenantable is the cause of our removal.”

The instruction to the jury was, in effect, that the aforesaid letter from the landlord was a continuing offer from the time of its transmission, to accept a surrender of the existing lease whenever the defendant chose to make it; that the letter from the defendant might be construed to operate as such surrender; and that the lease, therefore, came to an end on March 1st. We think this was a misconstruction of the landlord’s words. Some such communication from him was necessary at some time before the termination of the original lease, because otherwise, said lease being a verbal one for one year, a new demise for a second year would arise by operation of law if defendant elected to remain. In the exercise of common sense, as well as good legal judgment, this is the only interpretation that could be put upon the landlord’s letter. Upon a former trial of this action one of the judges of the court below has construed this letter as follows:

“ Where a landlord gives his tenant a notice to move on or before April 30th, that means he is not to move after April 30th, that he is to move on the termination of the tenancy, the liberty to move sooner being a liberty the tenant has. A landlord may give a tenant notice to move on or before the 1st of May, his lease being up to the 1st of May; but that does not mean that if a tenant should move out the next day, he should pay no rent. It means that the landlord will insist upon his legal right to have him move out before the last day of the term. 1 On or before ’ is common language of the law, meaning that if you remain one day after, you remain at your peril, you are a trespasser, a wrong-doer. A landlord can take nothing away from a tenant’s rights, and waives nothing by serving a notice of that kind.”

This view is eminently sound, and it was grave error to submit any different one to the jury. They were allowed to find a verdict either on the ground of eviction, or of alleged surrender of the, lease brought about by this correspondence. Of course we cannot say upon which ground their finding was based, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Bookstaver, J.

As was said by us when this case was before us -on a former appeal, “what would justify a tenant in vacating the premises ’’ hired by him for a constructive eviction “ depends so much on the terms of the lease ” and various conditions in that opinion set forth, that any discussion of it at that time would be premature. As the testimony on the new trial may change the aspect of the case, I still deem it premature to discuss that question at this time or to express any opinion on that evidence presented to us now. The question is a very close one and can be satisfactorily decided when all the facts are before the court to be determined after a trial free from error in other respects.

The plaintiff having died before the last trial of this action and the defendant having become incompetent under § 829 of the Code to testify to any personal transaction between himself and the deceased, he availed himself of the right given by § 830 of the Code to read his evidence given on both of the former trials of this action subject to legal objection, etc., as provided in § 830. The plaintiff objected to the reading of the testimony given on the first trial, contending that the section confined the defendant to reading the evidence given by him on the last preceding trial and did not permit the reading of that given on the first trial. I agree with the learned chief judge that no error was committed in allowing both to be read. The appellant’s contention is based upon the language used in the section, which permits the party rendered incompetent to read his evidence “taken or read at ¡Reformer trial,” insisting that it means the last trial only, if there be more than -one. This construction, if correct, would confine the reading of such testimony to the first trial only following the death of the other party, for the language permitting such reading is “ At a new trial or hearing," and not any new trial, if more than one should be required, which would defeat the object of the section in case there were two trials following the death of a party.

I think the intention of the section was to give competency to any testimony of the witness given in the case between the same parties before the incompetency attached to him. The then plaintiff against whose executrix it is now offered had the same opportunity, and certainly as great an interest as his executrix can have to resort to every test to probe the witness and his evidence. The same reasons which render it proper to allow the testimony given on the last trial preceding the plaintiff’s death, operate to allow the reading of the testimony given on the first trial as far as the same is pertinent to the contest I therefore think the section was intended to permit the reading of any testimony given under such circumstances whether on the last or any preceding trial of the action.

The question read from the former examination of the witness in which he was asked to state what the deceased had agreed to furnish and what he had agreed to do, is, I think, fatal. It clearly called for the conclusion of the witness merely, and not for what took place or was said between the parties. The learned judge-who presided at that trial first excluded the question on plaintiff's objection that it merely called for a conclusion, and when shortly afterwards it was repeated allowed it, and the answer shows that he.gave his conclusions only and not what was said or done. It was sufficient for the plaintiff to object as he did on the grounds before stated by him, and it was not necessary to repeat those grounds; the court’s attention had been specifically called to them. Dilleber v. Home Life Ins. Co., 69 N. Y., 256, 260.

The testimony given at the former trial is allowed to be read subject to any legal objection to the testimony, or to-any question put to the witness.

I agree with the learned chief judge, for the reasons assigned by him, that it was error to charge as was done in regard to the letters of February 1, 1886, and March 1, 1886.

For these reasons the judgment must be reversed and a new-trial ordered, with costs to abide the event.  