
    Frank X. Haas, Appellant, v. Hyman Brown et al., Respondents.
    (City Court of New York, General Term,
    July, 1897.)
    Lease — Waiver of a condition—Knowledge of lessor.
    Although a written lease provides that the lessees shall not use the premises for any purpose other than that of a. paper box factory, the lessor cannot recover, as matter of law, for an alleged violation of the covenant, in that the lessees stored, in a small space upon the- second floor of the premises, forty or fifty tons of cardboard paper, which broke the beams beneath the floor, where it appears that he had frequently visited the floor, knew-of the stock of paper kept on hand, and had said that the floor would hold ten times as much paper as the lessees had there, and the question whether there was a waiver by the lessor is one proper for the consideration of the jury.
    Arpeal from a judgment .in favor of plaintiff entered upon a verdict and from an order denying motion for a new trial upon the judge’s minutes.
    
      Blandy, Mooney & Shipman, for appellant.
    Max D. Steuer, for respondents.
   Schuchman, J.

This is an appeal from a judgment entered upon a verdict, rendered by a jury, and from the order denying a motion for a new trial, upon the judge’s minutes.

This action is brought to recover damages by reason of the defendant’s violation of the following covenants of then lease, viz.: “That the premises No. 125 Attorney street, in the city of New York, were leased and demised by the plaintiff to the defendants to be used by them only as a paper-box factory and not otherwise, that the defendants should not occupy or use the said premises nor permit the same to be used or occupied for any business extra hazardous on account of fire or otherwise, without the written consent of the plaintiff, under a penalty of forfeiture and damages, and that the defendants would quit and surrender the premises so demised in as good a state and condition as reasonable use and wear thereof would permit, damages by the elements excepted.”

The evidence adduced by the plaintiff shows that the defendants piled upon the second floor of said premises upon a space of about ten or twelve feet square, forty to fifty tons of cardboard paper, and in consequence of that weight which was too heavy as and for the reasonable use of that floor, the beams broke and fell to the floor below, and the further fact that the plaintiff repeatedly warned the defendants not to overload that particular space with piles of paper but place the paper more around the walls.

The evidence adduced on behalf of the defendants show that on May 13, 1895, when the accident, happened and the second floor broke down, there was only loaded eight tons of paper upon the particular space of flooring which broke down; that they never had more than ten or twelve tons on said floor; that the plaintiff repeatedly visited said- floor, knew the quantity of stock of paper that they always kept on hand, and the further fact that the defendants asked the plaintiff prior to the accident whether he thought the floor was strong enough to hold that quantity of paper,, to which he replied, “ Nonsense, it will hold ten times as much as you have there,” and the further fact that there was a fire in said building in 1889-, and that these very beams that broke were burned, and after the accident about fifteen new beams were put m and the burned ones taken out.

Ón this conflict of evidence, the question of the defendants’ liability for a misuser of the premises under the covenants in the lease was properly and fairly submitted to the jury, who found for the defendants. ■ ¡

. The evidence fully sustains that verdict.

Judgment and order appealed from affirmed, with costs.

Van Wyck, Oh. J., and McCarthy, J., concur.

. Judgment and order affirmed, with costs.  