
    Samuel Corn et al., App’lts, v. Joseph Rosenthal, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    Evidence—Competency—Withdrawal oe case from jury.
    In an action to recover rent under an alleged lease, the defense was that the lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises was delivered two weeks before the commencement of the term, which was not done. This defense was sought to be established by the testimony of defendant, which was admitted under objection, and when the parties rested it remained substantially unchallenged; thereupon, on motion and under objection, the court directed the jury to find for defendant. Held, that the testimony was competent for the purpose for which it was offered, but that it was error to withdraw the case from the jury’s consideration.
    Appeal from a judgment for defendant recovered in the district court in the city of Hew York for the Eleventh judicial district and entered upon a verdict rendered by direction of the court
    Action to recover rent which had accrued under an alleged lease, the defense being that the lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises thereby demised was delivered to defendant two weeks before the commencement of the term, and that such delivery of possession was omitted.
    
      Carlisle Norwood, for app’lts; F. R. Minrath, for resp’t.
   Bischoff, J.

This action was brought to recover the first instalment of rent which had accrued under an alleged lease in writing as follows:

“New York, December 18, 1891.
“It is hereby agreed between Samuel & Henry Corn and Joseph Rosenthal that the said Samuel & Henry Corn do lease unto the said Joseph Rosenthal the part of store and basement of 127 Greene street, from February 1, 1892, to February 1, 1893, at the annual rent of $1,000, payable monthly in advance, except such portion of the store which is now occupied by Hockmeyer Bros., which has nothing to do with said lease.
“ (Signed.) Samuel & Henry Corn, Joseph Rosenthal.”

On the trial the defense that the instrument purporting to be a lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises, thereby intended to be demised, was delivered to the lessee two weeks before the commencement of the term, which was not done, was sought to be established by the testimony of the defendant lessee. This testimony was admitted, under objection- and exception respecting its competency by plaintiff’s counsel, and when the introduction of evidence was concluded it remained substantially unchallenged. Thereupon, on motion of defendant’s counsel, and again under objection and exception by plaintiff’s counsel, the court directed the jury to find for defendant

We are of the opinion that the testimony objected to and admitted was competent for the purpose for which it was offered, under the ruling of the court of appeals in Reynolds v. Robinson, 110 N. Y., 654; 18 St Rep., 235, but that the trial justice erred in withdrawing the case from the jury’s consideration. Defendant’s testimony was that of a party in interest, whose credibility should be determined by the jury, though it remained otherwise unimpeached. Neal’s testimony, by which defendant was sought to be corroborated, falls short of having that effect. He heard confessedly only part of what defendant said immediately after the execution and delivery of the paper, so that it does not appear from his testimony that defendant’s proposition was assented to by plaintiffs. Elwood v. Western U. Tel. Co., 45 N. Y., 549 ; Gildersleeve v. London, 73 id., 609; Honegger v. Wettstein, 94 id., 252; Kavanagh v. Wilson, 70 id., 177; The Canajoharie Nat'l Bank v. Diefendorf 123 id., 191, 200; 33 St. Rep., 389.

The judgment appealed from must be reversed and a new trial ordered, with costs to abide the event

Bookstayer, J., concurs.  