
    GOLDSMITH et al. v. CROWLEY et al.
    (Supreme Court, Appellate Term.
    March. 5, 1909.)
    Landlord and Tenant (§ 231*)—Action for Rent—Evidence—Sufficiency.
    Evidence in an action for rent, defended on the ground of eviction through the landlord’s failure to repair, held, to sustain a judgment for defendants.
    [Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 934; Dec. Dig. § 231.*]
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by Ingomar Goldsmith' and another against Cornelius Crowley and others. From a judgment for defendants, -plaintiffs appeal. Affirmed.
    Argued before GILDERSLEEVE, P. J., and MacLEAN and DAYTON, JJ.
    Felix H. Levy, for appellants.
    David Lisnow, for respondents.
   DAYTON, J.

Plaintiffs sued on a written lease for installments of rent amounting to $120. The making of the- lease was admitted, but the instrument was not put in evidence by either side. There was no conflict as to the amount due, if any amount should be found due. The answer alleged that:

“Plaintiffs have not complied with the terms of the lease, inasmuch that said plaintiffs were to make all the repairs to the plumbing and furnace, and that, on account of such refusal to repair, defendants, on account of the unsanitary condition of the premises, had to leave the said premises.”

The defendants claimed that shortly prior to signing the lease they stated to the plaintiffs that the house was in bad repair as to various conditions, which plaintiffs admitted, and told them they had a contractor working on the place who would put it in good shape. As there is no lease in evidence, and the learned trial judge found by his judgment that the repairs had not been completed, the judgment must be affirmed without prejudice to another action, if it can therein be shown that the plaintiffs were hot bound by the terms of the lease to make these repairs.

Judgment affirmed, with costs. All concur.  