
    JOHN SCOGNAMIGLIO, PLAINTIFF-APPELLEE, v. ANTONIO MODERO AND INNOCENZA MODERO, DEFENDANTS-APPELLANTS.
    Submitted January 26, 1929
    Decided June 28, 1929.
    Before Justices Trenchard, Kalisch: and Lloyd.
    For the appellants, Dante Reveiti.
    
    For the appellee, A. Michael Lepore.
    
   Pee Curiam.

This is defendants’ appeal from a judgment entered in favor of plaintiff in the District Court of the First Judicial District of the County of Hudson, by the trial judge, sitting without a jury.

Defendants were the owners of a store and apartment. The plaintiff was their tenant. When the lease was made plaintiff deposited $250 as security. Before the expiration of the lease a fire occurred rendering the premises occupied by plaintiff unfit for use, and the owners decided not to restore the premises, but instead accepted the keys from the tenant about a week after the fire. No repairs were made for more than two months. The premises were never restored to their original condition, hut two months after the fire were altered by the owners to suit their own purposes, and the owners thereafter occupied the same. The tenant thereupon demanded his deposit, hut it was refused. He thereupon brought this suit for the amount of his deposit, and the trial judge, without reciting the evidence, made a finding of facts from which the foregoing matters are extracted.

The trial judge also found that the defendants had accepted a surrender of the premises.

The defendants complain that the latter finding was not within the issues raised by the pleadings. To this the answer is that evidence showing acceptance of a surrender of the premises was competent under the pleadings, and it will be presumed that at the trial there was evidence justifying the finding, nothing appearing to the contrary.

We believe that these observations dispose of every question argued which seems to justify remark.

The judgment will be affirmed, with costs.  