
    Robert McCulloch, App’lt, v. John Dobson et al., Resp’ts.
    
    
      Court of Appeals,
    
    
      Filed April 12, 1892.)
    
    1. Lease—Repairs.
    In an action for injury to the premises by the neglect of lessees to keep and perform the covenants of a lease as to repairs, the answer contained a denial and set up a counterclaim for repairs done by defendants before entry on the employment of the lessor. The evidence was conflicting, but defendants’ testimony was express that plaintiff told them to get the place put in order and charge it to him. Held, that the covenants of the lease, when read together, meant that the tenants were to receive the premises in good working order and repair, and was to leave them in that condition, and whether there was a breach by the tenants was a question of fact for the referee.
    3. Same—Parol request by landlord for tenant to repair.
    Plaintiff's paroi request to defendants, after the delivery of the lease, to make the repairs contemplated, and his promise to indemnify them for the cost, was binding upon him.
    •3. Reference—Code Civ. Pro., § 993.
    The mere fact that a referee filed his statement without having noted his decision upon the margin opposite each proposition is not a <v refusal to make any finding whatever” within the meaning of § 993 of the Code Civ. Pro. In such a case the proper practice is to apply to the court to send the report or the statement back to the referee for the purpose of supplying the omission or correcting the mistake if it be one.
    4. Same—Appeal.
    A motion to set aside a referee’s report on the ground that his mind was impaired and he was incompetent to perform his duties, or for additional allowance on the ground that a case is difficult and extraordinary, is addressed to the discretion of the court, and is not reviewable here.
    
      Appeal from a judgment of the supreme court, general term, second department, affirming judgment in favor of defendants, entered on report of referee.
    
      Benno Loewy, for appít; George L. Carlisle, for resp’ts. .
    
      
       Affirming 39 St. Rep., 907.
    
   O’Brien, J.

The plaintiff’s action was for the recovery of damages for the breach, by the defendants, of the covenants of a lease of a silk mill and machinery, executed and bearing date September 4, 1884, for a period of two years from the 30th of September following. The defendants entered into possession of the demised premises and occupied them for the term and' paid the stipulated rent of $5,000 per annum. The covenant upon which this action depended was to the effect that the defendants, during the term, would at their own expense keep and maintain the mill, water power, machinery, tools and appurtenances, including the dam and raceway, in good repair and condition, and further that after the expiration of the term they would surrender the demised premises in as good condition as reasonable use and wear thereof would permit. The complaint charges a breach of those covenants in various particulars, not important now to specify, on account of which a large sum was claimed as damages. The defendants covenanted in the lease not to run the mill over time, without the consent of the underwriters and companies insuring the same first had, and in case permission to do so was given, they were to pay the plaintiff any additional sum that he would be, for this reason, obliged to pay as premium on the risk insured. That the defendants, in compliance with the lease, gave-the plaintiff notice on March 3, 1885, that it was their intention to run the mill over time and requested the plaintiff to get the consent of the insurance companies for that purpose; with which request the plaintiff complied, at an expense to him of $300 in additional premiums, which the defendants never refunded.

The defendants’ answer put in issue all the allegations of the complaint with respect to a breach of the covenants of the lease, and for a separate defense and as a counterclaim alleged that both prior to and at the time of the execution of the lease the plaintiff promised and agreed with the defendants that he would, at his own expense, make such repairs to 'the premises, appurtenances and machinery about to be included in the lease as would be sufficient to put the same in good, full and complete working order and repair prior to the time that the defendants’ right of entry should accrue. That the defendants refused to sign the lease until such repairs were "made, or until plaintiff promised so to do. Whereupon the plaintiff, as an inducement to the defendants- to execute the lease, and in consideration thereof, agreed to-put the premises and machinery covered by the lease" in good, full and complete working order and repair. That in pursuance of this agreement the plaintiff requested and employed the defendants to make the repairs themselves at his expense; that in making the repairs contemplated they performed labor and furnished materials of the value of $2,500 and upwards which-the plaintiff" had not paid to them. After the covenant in the lease providing for the surrender of the premises, follows this provision: “ It being understood that the said premises should be in good repair before entry of the said party of the second part, and it is also agreed that the said party of the first part shall put in steam pipes for heating.”

The issues were tried by a referee, who found that the plaintiff stipulated in the lease to put the premises in repair before entry by defendants, and that the plaintiff agreed, by paroi, that if defendants would make such repairs, he would pay to them the cost of the same. That the defendants then did make such repairs, which the plaintiff was bound to make under the agreement, at a cost in all of $2,413.15. He also found that the defendants surrendered the demised premises, at the expiration of the term, in as good condition, reasonable wear and tear excepted, as they were in when received from the plaintiff, and bettered by at least the amount above mentioned expended by the defendants in the repair of the property. That, besides the sum so expended, the defendants during the term expended a large sum in keeping and maintaining the demises premised in good order, and that they did keep and maintain the property in as good order and condition as that in which they had received them, except that they failed to .-surrender and turn over to the plaintiff certain machinery and tools covered by the lease of the value of twenty dollars. He sustained the plaintiff’s claim for additional premiums paid by reason of running the mill over time, and found the amount to be $362.12, which the defendants had not refunded. He then deducted the two sums found in favor of the plaintiff from the sum found in favor of the defendants, and directed judgment in favor of the defendants for the balance, $2,031.03, and that the complaint be dismissed. The covenants of the lease when .all read together mean that the lessor will put the premises in good working order and repair before the commencement of the term, that the lessees will then keep them in repair, and at the end' of the term surrender them to the. lessor in as good condition as they were in at the commencement of the term, when the lessor had performed his covenant to put them in good working order, ordinary use and wear excepted. The tenant was to receive the demised premises in good working •order and repair, and he was to leave them in that condition as near as reasonable use and wear would permit.

Whether there was a breach of the covenants of the lease ■on the part of the defendants in failing to keep the premises in repair, or in failing to- surrender them in the condition required by the lease, was a question of fact which has been determined against the plaintiff by the referee upon a- mass of .conflicting evidence, and in this court his finding on that point must be treated as conclusive.

It is ' not important to consider the effect of the plaintiff’s paroi promise to put the premises in a good and tenantable condition before the commencement of the term, because the lease itself contains a sufficient provision on this subject. The plaintiff’s paroi request to the defendants, after the delivery ■ of the lease, to make the repairs contemplated, and his promise to-indemnify them for the cost, was certainly binding upon him. The request and promise, as well as the extent and cost of the repairs, involved a question of fact which the referee has-determined against the plaintiff. The voluminous record before-us contains a mass of evidence bearing on the two questions-referred to, but the most favorable view that can be taken for the plaintiff would be obliged to admit that it was at least conflicting. In this court any discussion of it would be quite useless as the finding of the referee must be accepted as the true-state of the facts.

The plaintiff’s counsel has called our attention to various requests presented to the referee to find upon the evidence the facts-therein incorporated._ We have examined them with some care, and think it is sufficient to say with respect to them that none of the requests that were material, or that the plaintiff was entitled, to have passed upon by the referee, were so conclusively established by proof as to warrant this court in holding that there was legal error in declining to find as requested.

The learned counsel for the plaintiff argues, as ground of error, requiring this court to reverse the judgment, the omission of the-referee to indicate, upon the margin of the paper or otherwise, his-disposition of certain propositions of fact and law submitted to-him under § 1023 of the Code. That section requires that “ At or before the time when the decision or report is rendered, the court, or the referee must note on the margin of the statement the manner in which each proposition has been disposed of, and must either file or return to the attorney the statement thus noted; but-an omission so to do does not affect the validity of the decision or report.” As to some of the numerous requests submitted to the-referee in this case, he made no note on the margin indicating the disposition made of them. As to the others, he complied with the Code. Section 993 provides that a refusal to make any finding on a question of fact, seasonably submitted, is a ruling on a. question of law. There are two answers to the plaintiff’s contention in this respect.

First. Nearly all the propositions are' either covered by the-findings made by the referee and stated in his report or they are immaterial. The most important of them relate to provisions of' the lease which the referee was asked to find. The lease and every part of it was in evidence and is in the record now before the court, and the plaintiff has the benefit of all its provisions. It. was not necessary that the referee should incorporate it in his report or make separate findings in regard to all its stipulations. The referee could find nothing which was not embraced in the instrument, and the plaintiff could not be injured by his failure to state-in the form of a distinct proposition what the lease did or did not contain. Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21.

Secondly. The mere fact that the referee filed the statement or delivered it to the attorney without having noted his decision upon the margin opposite each proposition is not a “ refusal to-make any finding whatever ” within the meaning of § 993. That may be the result of a mistake which is liable to occur in any case, especially when the requests are very numerous. If the referee had failed to file or deliver the paper at all that would not affect the validity of his decision under § 1023. Much less can it be said that his omission to note upon the margin of the paper his disposition of one or several requests is an error of law reviewable in this court. In such a case the proper practice is to apply to the court to send the report or the statement back to the referee for the purpose of supplying the omission or correcting the mistake if it be one. It is only when it affirmatively appears by the record that the court or referee has refused or declined to pass; upon requests or make findings that this court can treat the refusal as a ruling on a question of law. The omission of the usual note on the margin of the statement does not necessarily show in this case that the referee refused to pass upon the plaintiff’s findings. So that, even if there is, among the requests referred to, anything material, or that would be beneficial to the plaintiff, the question is not properly before us on this record.

There are many exceptions in the record to the rulings of the referee admitting or excluding evidence offered by either party. But very few of these exceptions merit any special notice. In order to prove that the machinery was not in good repair when the defendants’ term commenced they were permitted to give the testimony of witnesses as to its condition subsequent to the commencement of the term. Some of these witnesses were experts, and they all described the condition of the articles of machinery, the appearance of the fractures and other defects in such a way as to reflect light upon the condition of the same articles a few months or weeks before. Evidence as to the condition of machinery in a mill at a particular date is competent ordinarily to show what its condition was at a date shortly before.- It is not necessary that the- witnesses should have seen the machinery at or before the time when its condition is to be ascertained. The fact that they did not examine or see the machinery at the very day, nor till some days or even months subsequent to the time in question, may affect the value, but not, ordinarily, the competency of the testimony.

The plaintiff sought to prove by a witness who worked in the-mill for the defendants a conversation between defendants’ foreman and a third party as to the condition of the machinery. This was excluded and properly so. The plaintiff could not prove his case, as to the condition of the premises, by declarations of the foreman to a third party. The plaintiff in order to show that the machinery was in good order at the commencement of the term offered samples of silk made from it in 1883 which were excluded. Aside from any other objection to this species of evidence, it was quite absurd to suppose that the referee could judge as to the condition of machinery from the character of the products of the mill Proof was also offered to show that defendant employed incompetent hands as a basis for an inference that they necessarily damaged the machinery. This was properly excluded. It was-sought to impeach one of the witnesses for the defendant who gave material testimony by proof of his admissions, after the testimony was given, to the effect that it was not truthful. This was excluded. A witness cannot be impeached by proof of declarations made out of court, before or after the trial, contradictory of his testimony, until a proper foundation is laid for the impeachment by interrogating the witness himself. in regard to the statement. The other exceptions in the case are of no greater and many of them are of very much less importance. None of them presents any question that requires a reversal of the judgment. The record contains a notice of appeal from two orders, made in the case, and which have been affirmed at the general term. The referee’s report was made and signed July 14, 1888. It was delivered on the 17th and filed on the 18th of July and on'the 20th of that month he died. One of the orders denied a motion, made by the plaintiff, to set aside the report on the ground that the referee’s mind was impaired some time before his death and he was incompetent to perform the duties of a referee. The other order granted to the defendants an additional allowance of costs on the ground that the case was difficult and extraordinary. Both motions were addressed to the discretion of the court and the decision of the general term, affirming them, is not reviewable here. The judgment should be affirmed, and the appeals from the orders dismissed, with costs. '

All concur.  