
    Margaret A. Oliver, Resp’t, v. William L. Moore, Adm’r, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Verdict—When will be set aside.
    Where the court find it impossible to reconcile a verdict with any theory which has any support in the evidence given upon the trial, the verdict must be set aside.
    Appeal from judgment entered on verdict, and from order denying motion for new trial.
    
      H. KeTtel, for app’lt; J. N. Hayes, for resp’t.
   Van Brunt, P. J.

This action was brought by a boardinghouse keeper to recover under an agreement to let certain rooms with board. The facts as they appeared upon the trial were as follows:

In 1884 the plaintiff, who occupied a house No. 675 Fifth avenue, entered into a sealed agreement, whereby she agreed to let to Harriet Gross two rooms in the third story of her house for the term of eight and a half months from October then next at the rate of $2,725, to be paid in weekly portions of seventy-five dollars each, beginning on October 1st; and also that she would furnish suitable food for the said Harriet Gross in a suitable manner for herself and her waiting maid for the whole term for which the agreement was made without additional charge, or expense to said Harriet Gross other than was therein contained. Miss Gross and her maid entered into the occupation of the two rooms and continued to occupy them until the 27th of November, 1884, when Miss Gross died.

The plaintiff furnished board to the maid up to February 7, 1885. The compensation specified in the agreement was paid to the plaintiff up to about the time of Miss Gross’ death. Thereafter this action was commenced against the executor of Miss Gross to recover the amount specified in the agreement after crediting her estate with $186 received from persons who occupied the rooms after Miss Gross’ death. The plaintiff insisted that the defendant was not entitled to claim any off set upon the theory that the plaintiff had saved money by not being obliged to board the decedent and maid for the whole term. Upon the previous trial of the case this view was taken, which, however, was reversed by the general term, they holding that the defendants were entitled to a deduction for what it would have cost the plaintiff to have boarded Miss Gross and her maid to the end of the term. The case was then again tried and the foregoing facts appeared, and also that the plaintiff had rented the premises in question from the 1st of May to the 15th of June, 1885, at the rate of $45.00 a week. The family consisting of five persons, it was claimed by the plaintiff that although it would have cost little or nothing to board Miss Gross and her maid upon the theory that in a household as large as hers the addition of one or two boarders made no difference in expense of running the house, yet she insisted that the additional three persons in the new tenant’s family entailed an additional expense of $21 a week, or $126 in all.

The claim of the plaintiff, after deducting certain credits, amounted with interest to $1,353.02. The jury rendered a verdict for $1,227.02, apparently deducting the $Í26 which the plaintiff stated had been the additional cost of boarding the three additional persons in the family of her new tenant.

After a careful examination of the evidence it has been impossible to reconcile the verdict with any theory which has any support in the evidence.

It certainly did not cost the plaintiff any more to board the three additional persons in her new tenant’s family, in proportion, than it cost to board Miss Gross and her maid, although she-says that- Miss Gross ate very little, and the maid had a remarkably good appetite. The plaintiff testified that the additional cost for those three persons was twenty-one dollars per week, or a dollar a day, and yet that it cost nothing to board Miss Gross and her maid. This shows how utterly unreliable this story isas, to there being no additional cost in the boarding of one or two additional persons. If it cost nothing additional to board Miss Gross, and her maid, it certainly should have cost nothing additional to board at least two more than Miss Gross and her maid. Thus-we see that the jury have disregarded each and every theory which is possible to be deduced from the evidence; which either shows that it cost nothing to board Miss Gross and her maid, or that it cost, a dollar a day at least for each. There was evidence from which it might be found that the expense of board would have-been more than that, but taking the case most favorable to the plaintiff, there is no theory whatever which can be derived from the evidence which would support the verdict. The jury aré to-be guided by the evidence. They cannot guess at an amount which should be due to the plaintiff. They must find their verdict upon the evidence, and upon the evidence alone, and if there is no evidence to support their verdict, it has no foundation and must fall. There is no evidence to support the verdict in question. It may have been difficult for them to arrive at a conclusion from the meagreness of the evidence,' and its uncertain and unsatisfactory character, but that fact does not justify the rendition of an arbitrary verdict, unsupported by any evidence which has been adduced in the case.

There is nothing whatever to justify a deduction of $126, and it seems to be evident that such deduction was made without realizing the relations of the parties or the effect of the evidence, and that the verdict was not an intelligent deduction of the jury from'the evidence introduced on the trial.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels and Beady, JJ., concur.  