
    CHARLES A. EDWARDS, Respondent, v. ALEXANDER McLEAN, Appellant.
    
      Lease in counterparts, two to be construed together—General Term, when error in not disposing of case below as a matter of law cannot be assigned at—Infectious disease, ivhen not defense to action for rent.
    
    ' The action was for rent of a dwelling house let by plaintiff to defendant. By the lease in plaintiff’s possession the house was let “ to be furnished substantially as it now is.” By the counterpart in defendant’s possession “ it was let to be furnished as it now is.” At the time of making the lease the house was, to the knowledge of both parties, occupied by a tenant of the plaintiff. Held, that by legal implication the counterpart held by defendant expresses what is expressed by the word “ substantially ” in the lease held by plaintiff.
    One of the defenses to the action was that the requisite amount of furniture was not in the house. On the trial, both sides litigated this question. At the close of plaintiff’s case defendant moved for a dismissal of the complaint. At the close of the proof on both sides the judge ■ submitted that question to the jury upon the evidence given on both .sides, with the instruction (requested by defendant) that, “if the jury ■believe that the house as offered to the defendant June 1, 1885, was not furnished substantially as it was when the lease was executed, they .must find for the defendant.” No request for a direction of a verdict for defendant was made. Held, that the defendant could not complain ■of the disposition of the case.—(1st) because at the time of the motion to dismiss, plaintiff had made out a case for the jury; (2d) because the submission to the jury was acquiesced in by him.
    -Another defense was that the house had been infected; this was overruled. Meld, no error, it appearing that the infection occurred without plaintiff’s fault long after the making of the lease, and there being no ■ covenant as to the fitness of the premises for occupation as a dwelling.
    .Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided November 21, 1887.
    Appeal from a judgment entered upon the verdict of ¡a jury, and from order denying defendant’s motion for .a new trial.
    The facts sufficiently appear in the opinions and the ¡head note.
    
      Charles F. McLean, attorney, and of counsel for appellant, argued:
    I. The defendant is bound only by the lease delivered do him. The two New York cases which are cited in 'the digests as holding that the court will determine the ‘contract from the two counterparts, Mors v. Salisbury, 48 N. Y. 636 ; Calkins v. Falk, 38 How. 62, have no reference to a case such as this. Nor is the cases helped ¡by Fairchild v. Lynch, 10 J. & S. 265. It is a general rule that “ instruments should be construed contra proferentem,; that is, against him who gives, er undertakes, or enters into an obligation. The construction of grants should be favorable to the .grantee.....The reason of the rule contra prof eren
      
      tern is that men may be supposed to take care of themselves, and that he who gives and chooses the words by which he gives ought rather to be held to a strict interpretation of them than he who only accepts. 2 Parson Contracts, 18, 19.
    II. There was no tender of the house furnished substantially as it was when the contract was entered into. There was no occasion for a jury to pass upon this, and the court should have disposed of the case as a matter of law, as was requested upon the motion to dismiss, and upon the requests to charge. The court should have exercised its power and not left the jury to determine that which is within the observation of every person. That the house was in March prettily and cosily furnished ; that in June it was barren and incompletely furnished, is in evidence and uncontradicted. The court should therefore have disposed of the case.
    III. The court should have permitted evidence of the nature of the infection in the house.
    
      Walter Edwards, attorney, and of counsel for respondent, argued:
    I. The lease of the demised premises contained no covenant on the part of the plaintiff - except that defendant might peaceably and quietly have and enjoy the de.mised premises. It is the settled law in this state that in the absence of any covenant as to the fitness of the premises for occupation as a dwelling, no covenant of the lessor can be implied on that subject. Franklin v. Brown, 24 Weekly Dig. 463; Jaffe v. Hearteau, 56 N. Y. 398; Cleves v. Willoughby, 7 Hill, 83; O’Brien v. Capwell, 59 Barb. 497; Edwards v. Harlem R. R., 98 N. Y. 245.
    II. The scarlet fever occurred on the demised premises long after execution and delivery of the lease sued upon, and while the premises were occupied by one-Fuller, who was a tenant in possession when the lease in question was made—for a term to expire on May 15th, then next ensuing. The plaintiff knew nothing of the disease until informed by the defendant. Plaintiff knew nothing of the disease, in no way caused it, nor can he be in the least responsible for it. How then could such a matter affect the contract between the parties ? Cesar v. Karutz, 60 N. Y. 229, is in no way like the present case. It was cited in Franklin v. Brown, supra, and by this court very properly distinguished.
    III. As to the taking out of some of the furniture the contention of the appellant is as untenable as the one based on the contagious disease. The two parts of the lease were not exact counterparts; one read “furnished substantially as it is now,” the other omitted the word “ substantially.”
   By the Court.—Freedman, J.

The action is for the recovery of rent. The difference between the two counterparts of the lease is not material. They both bear date March 28, 1885, and under them the defendant was to have possession on the first day of June in that year. At the time of their execution the dwelling house was, to the knowedge of both parties, in the pos- ■ session of a tenant of the plaintiff. In the case of the lease delivered to the defendant, the legal implication is.' what in the lease retained by the plaintiff is expressed by the word “ substantially.” The dwelling house Avas therefore to be delivered furnished substantially as it then was, but with the further qualification expressed in the following words, Avhich are contained in both leases, viz.: “ But more particularly described in a certain inventory, Avhich is to accompany and form a part of this lease.”

Evidence was given on the part of the plaintiff, Avithout objection on the part of the defendant, to the effect that at the time of the execution of the leases, the inventory was in plaintiff’s desk; that the defendant did not ask for it, that for this reason the plaintiff did not give it, and that generally it is not gÍAren. The plaintiff also testified that he had the inventory with him at the trial. Now if that inventory had been offered and received in evidence, the jury might have found, upon a consideration of all the circumstances surrounding the execution of the leases, that the inventory referred to constituted part of the contract between the parties. But the plaintiff never offered it, and the defendant did not call for its production.

The following question propounded to the plaintiff, viz.: Q. “ Was all the furniture in the house on the first day of June, which had been in when Dr. McLean saw it which belonged to you, which was included in the inventory referred to in the lease ?.”—was, on defendant’s objection, excluded by the trial judge, “ unless knowledge of the contents of the inventory be in some way brought home to the defendant,” to which ruling the plaintiff excepted. After this ruling both parties went on to litigate, and they did litigate the question whether, irrespective of the existence of any inventory, there was or was not the required amount of furniture in the house at the time the defendant had obligated himself to take it. ' Upon this point the defendant contended, and a number of exceptions taken by him were taken upon the theory that he was strictly entitled to every piece of furniture, no matter how insignificant, which, at the time of the execution of the leases, was in the house, whether owned by the plaintiff or by the tenant then in possession, while the plaintiff contended that he performed' his part, if the house was furnished substantially as it was at the time of the execution of the leases. The trial judge submitted the question to the jury upon the evidence given on both sides, and with the instruction, that if the jury believed “ that the house as offered to the defendant, June 1, 1885, was not furnished substantially as it was when the lease was executed, they must find for the defendant.”

Of this disposition of the case the defendant has no right to complain. In view of the conceded fact that he refused to take .possession, the defendant was not entitled, at the close of plaintiff’s case, to have the complaint dismissed, because, under the operation of the rule that, on a motion for a nonsuit, the evidence must be construed in the light most favorable to the plaintiff, •and that, where different conclusions might be drawn by fair-minded men from a certain state of facts, it is the province of the jury to draw them, the plaintiff had then made out at least a case for the jury. On-the other hand, at the close of the evidence on both sides, the defendant made no motion for the direction of a verdict, and acquiesced in the submission to the jury of the question referred to. Under all the circumstances, the proceedings at the trial were fully, if not more so, as fair and favorable to the defendant as he could rightfully claim, and the verdict of the jury represents substantial justice. No reason appears why the verdict should be disturbed.

The defense, based on the claim that the house had been infected and that the infection was likely to continue, was properly overruled, because the infection •occurred, without the fault of the plaintiff, long after the execution and delivery of the lease, and the lease contained no covenant as to the fitness of the premises for occupation as a dwelling. See Franklin v. Brown, 53 Super. Ct. 474.

None of the exceptions taken being tenable, the judgment and order appealed from should be affirmed, with ■costs.

Sedgwick, Ch. J., concurred.

Truax, J. (dissenting).

The action was brought to recover the rent of a dwelling house situate at Morris-town, New Jersey. The house was let, according to the lease which was in the possession of the appellant, to be furnished as it now is,” but, according to the lease in the possession of the respondent, “ to be furnished substantially as it now is.”

The lease was dated the 28th day, of March, 1885, and! the appellant was to take possession of the premises on. the first day of June in that year.

It was not disputed on the trial that the house did not contain the furniture that was in it at the time the-lease was made. There was no dispute about which of the articles were not there, and therefore, under the facts in the case, it became a question of law for the trial judge to determine whether the house was or was-not substantially furnished as it was at the time the lease was made.

This question was fairly presented to the court by the motion to dismiss, and should then have been decided in favor of the defendant.

This view of the law renders it unnecessary for us to determine whether the lease delivered to the plaintiff or the lease delivered to the defendant is the controlling-lease in the case. Taking the plaintiff’s lease as the-controlling one in the case, the evidence shows that the plaintiff did not comply with his lease.

The judgment and order appealed from should be-reversed, and a new trial ordered, with costs to the, appellant to abide the event.  