
    Christian Jourgensen, Resp’t, v. Benjamin D. Traitel et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Lease—Time of commencement.
    Plaintiff let to defendants the top floor of a building for five years, and a memorandum of the leasing was made which provided that a formal lease was to be delivered before May 1, and the repairs should be completed by the 15th. This top floor was to be made by raising the building. The repairs were not completed until June 2 ; but defendants stored their machinery on the top floor. No formal lease was ever signed. Held, that a finding that the lease was to commence May 1 was correct.
    2. Same—Power.
    The memorandum of leasing also included the furnishing of steam power of “four horse power pulley face.” Held, that this implied that defendants were to have that amount of power for their own use, and that it was not enough to give that power at plaintiff’s pulley without allowing for loss of power in transmission.
    Appeal from judgment in favor of plaintiff, entered on report-of a referee.
    Action for rent and for additional steam power.
    
      Herman Frank, for app’lts; Blair, Rudd & Simis, for resp’t.
   Barnard, P. J.

—On the Sd of April, 1884, the plaintiff agreed to lease to the defendants the top floor in 96 and 98 Maiden Lane, Hew York. A memorandum of the agreement was signed and a formal lease was to be executed, which was never done. The lease was to be for five years. The premises called the top floor were not in existence when the memorandum was signed, but was to be made by raising the buildings on the lots. The lease was to be delivered before May 1, 1884, and the work was to be finished on or about May 15, 1884. The rent was to .be $1,200' per year, payable monthly, and the leasing included the furnishing' “ four horse power pulley face.” The premises were not completed until early in June, 1884. In the interval between the 1st of May, 1884, and the completion of the premises, the defendants’ machinery was stored in the then top floor of the buildings or one of them. When the power was tested by actual experience, it was found insufficient to run the machinery, and the parties differed as to the fact of four horse power pulley face being given. The defendants, at all events, required more power and promised to pay for all furnished over four horse power in addition to the rent. The defendants were nearly or quite all of June in fitting their machinery, and have paid the rent after the 1st of July, 1884, regularly. The plaintiff seeks to recover rent for the months of May and June, 1884, and also for additional power furnished under the agreement. As to the month of June, 1884, there can be no question of the right of the plaintiff to the rent. The premises were ready for occupancy on or about the 1st of June, 1884, and on the second the defendants took possession. The defendant testifies that plaintiff agreed to charge no rent until the defendants could get into the premises, and work. The plaintiff denies this emphatically ; “I never in any of these conversations released them from the payment of the two months rent." The memorandum necessarily implies that the lease was to commence May, 1, 1884, for it calls for the delivery of the formal lease before that time. The formal leases proposed all so stated the contract to be. Upon one of the leases the defendant made his objection to the terms of the lease in some respects, but no suggestion was made that the lease was not to commence May 1, 1884, and that the rent was to be monthly from that time. The memorandum gave the plaintiff until on or about the 15th of May, 1884, to finish the premises. The defendants actually had their premises upon the top floor of the building as it was before the repairs were completed. I think the finding that the agreement was that the lease was to commence May 1, 1884, is supported by the evidence.

The question of fact whether more than four horse power was furnished was the subject of very contradictory evidence. The plaintiff testifies that the larger pulley which was put on to obtain more power will give from six to eight horse power, and that he knew the facts, and that at the speed at which the plaintiff’s shaft revolved during the defendants’ occupancy the minimum power rendered to defendants was over five horse, and that the market price of power was two dollars per week. ^ The witness Pierce, a machinist, testifies that the first pulley would carry four horse power pulley face and with the larger one put on that it would take six horse power to run the defendants’ machinery. The defendants produced evidence tending to show that no more than four horse power was furnished, and the referee has found that one additional horse power was used, worth two dollars per week. The case is not clear whether or not the referee found that the five horse power used by defendants was based upon the power at the plaintiff’s pulley or at the defendants’ pulley. I think the agreement was intended to give the defendants four horse power for their use, and that it was not enough to give that power at the plaintiff’s pulley without allowing for the loss of power lost in transmission to the defendants’ pulley. The first lease made out by plaintiff rents “four horse steam power,” the amount of power actually used to be determined by mechanical device. The second lease refers to the power “ on premises of C. Jourgensen, on store floor." Neither of these leases were signed, as has been stated. The findings do not show whether the power was calculated at plaintiff’s or defendants’ pulley. There is one exception which seems to show that the calculation was made at the plaintiff’s pulley. The plaintiff at folio 176 of the case is asked whether power would be lost in transmission from the pulley of plaintiff to that of defendants. The question was ex-eluded on the ground that plaintiff had testified to power as given at one place and that the question asked for amount of power at another place.

From this ruling it seems that the referee based his report upon the amount of power given at plaintiff’s pulley and not upon the-power actually used by defendants.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event, unless the plaintiff remits the amount found due for extra power, in which case the judgment is affirmed for the balance, without costs to either party upon appeal.

Cullen, J., concurs.  