
    Chamberlain v. Dunlop.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Landlord- and Tenant—Lease—Renewal.
    A lease provided that it might be extended for two years by the lessee’s giving notice to the lessor, before the expiration of the lease, of his desire for such extension. This the lessee did, and then requested that a change be made in the lease. The lessor assented to the extension, but refused to make the change. The lessee remained in possession, and paid the rent. Reid, that the original lease, with all its covenants and conditions, was extended for two years.
    3. Same—Surrender of Lease.
    The acceptance of a new lease by the lessee during the term of a former lease does not work a surrender of the old one by operation of law, where the agreement with the lessee was that the new lease should be executed by all the parties having an interest in the property, but some of them fail to do so, of which fact the lessee is ignorant at the time of its acceptance.
    8. Same—Value of Lease—Opinion Evidence.
    The opinion of an experienced miller, who has stated the amount of business done by a mill the previous year, the increase of business, the monthly receipts, expenses, and profits, in detail, and all the facts and circumstances showing the nature of the business, and how it was carried on, is competent to establish the value per month of the lease of the mill for the next few months.
    4. Evidence—Experts—Who are.
    Where an architect has sworn that he had had a practical, personal experience in removing débris of buildings destroyed by fire had himself had débris removed, and had seen it removed by others, he is shown competent to answer the question: “How long, in your opinion, would it have taken to remove the débris, to permit the rebuilding to commence? ”
    5. Same—Architects.
    Where an architect has testified that he had had experience in erecting a large number of buildings, and had been in the habit of observing' the length of time required to procure materials and to do the work, he is shown competent to answer the question, “Whether it would have been safe to run up the brick walls in six weeks. ”
    6. Damases—Interest.
    In an action, by a lessee against his lessor, for failure to rebuild a mill destroyed by fire, as provided by the lease, the damages not being liquidated, it is error to-allow interest thereon.
    Appeal from judgment on report of referee.
    Action by Frank Chamberlain against Robert Dunlop, as executor of Robert Dunlop, deceased, for breach of contract in failing to rebuild a mill and eldvator which had been destroyed by tire; the lease under which plaintiff held such property providing that in case of fire it should be rebuilt with all reasonable promptness. Defendant appeals from a judgment entered in Albany county in favor of plaintiff.
    Argued before Learned, P. J., and Landon and Putnam. JJ.
    
      Amasa J, Parker, for appellant. Isaac Lawson, for respondent.
   Putnam, J.

The contract of lease executed between Robert Dunlop, deceased, and plaintiff, containing the covenant for the breach of which this action was brought, took effect on November 1, 1876, and continued for five years, or until November 1, 1881, with a right to plaintiff to have the lease extended for the period of two years longer, upon the same terms and conditions, provided that plaintiff gave the lessor, at least three months before the expiration of the five years, written notice of his desire for such extension. The letter written by plaintiff on July 23, 1881, was a written notice to the lessor that plaintiff elected to extend the lease for the two years. It was served in time, and in all regards seems to be a compliance with the conditions of the lease. The fact that plaintiff, in such letter, after notifying the lessor of his election to extend the lease, also proposed a modification of its terms so that it should expire on May 1, 1884, instead of November 1, 1883, does not in any way impair the force of his previous notification of an election to extend the term to November 1,1883. The letter dated July 26,1881, written by the lessor to plaintiff, was an assent to the extension of the lease, but a refusal to change its terms. After the notice, it appears that plaintiff remained in possession of the leased premises, and paid rent under the lease so extended. The effect of this written notice, clearly, was to extend the lease to November 1, 1883, with all its terms, conditions, and covenants. Betts v. June, 51 N. Y. 274; Long v. Stafford, 103 N. Y. 274, 8 N. E. Rep. 522.

The defendant claims, however, that this lease was surrendered, by operation of law-, by the plaintiff’s accepting, on March 3,1883, a new lease, executed by the heirs of Robert Dunlop, deceased. It is held that a surrender by operation of law is implied by the acceptance of a new lease by the tenant during the term of the former one. The new lease did not begin till May 1, 1883. But the new lease must be valid at law, to vest in the lessee the term which it professes to convey, and to carry out the intent of the parties. Tayl. Landl. & Ten. §§ 512, 513; Schieffelin v. Carpenter, 15 Wend. 405, 406. It was shown by plaintiff that the new lease was agreed to be executed by all parties having an interest in the property; and that it was not executed by the widow of the deceased and by one of the heirs, owning an undivided one-eighth interest in the property, so that the plaintiff, under it, would not obtain a good title to the leased premises, according to the contract; and that he supposed, when he received the lease, that it covered the interests of all parties having an interest in the property. This evidence was not contradicted. We think that the conclusion of the referee that the acceptance of the new lease did not, by operation of law, work a surrender of the old one, is correct. It is only a lease that conveys the title to the leased premises according to the intent of the parties that implies a surrender. Here it is shown that plaintiff, under the new lease, did not obtain the interest he thought he did; that he did not obtain good title to the premises. One of the lessors, Susan Dun-lop, who appears, on the face of the lease, to have executed it, did not, in fact, do so. Counsel for the appellant suggests that she stood by, and approved it. She could not legally approve it, because she was an infant. It is also suggested that she never disaffirmed the lease, but has since done all in her power to ratify and affirm it. The difficulty with the defendant’s position is that, if it was a surrender of the old lease, it was a surrender that took effect on March 3, 1883, when plaintiff received the new lease, and that Susan Dun-lop did not become of age until September 8, 1883, and could not, until that time, legally ratify or affirm the new lease. Besides, by the terms of the new lease, it ceased and determined by the fire, March 3d. So that, if plaintiff’s acceptance of the new lease, delivered to him on March 3, 1883, under such representations and circumstances as amount very nearly to a fraud on him, works a surrender of the old lease, such surrender must date from March 3, 1883; and Susan, at any time after that, before she became of age, could have refused to ratify the lease. Thus, if the contention of the defendant is correct, plaintiff, by receiving a lease not conveying good title, or the title he was to have, would have surrendered a valid lease, under which he could hold the property until November 1, 1883. The new lease which he received was not one that any business man would have accepted of such a valuable leasehold interest, if aware of the defects in its execution. Susan could, at any time after its acceptance, interfere with the occupancy of the tenant. It is true, had plaintiff continued to occupy the premises under the new lease uiidisturbed, he would have been compelled to pay the rent therein reserved; but no such state of facts exists in this case. Before the lease took effect the property was burned, and, by its terms, it ceased and became of no effect; and hence, also, it was not necessary for plaintiff to tender it back to the lessors, it having, by its terms, become void before it went into operation. Hence, we conclude that the old lease, counted on in the complaint, remained in force until November 1, 1883.

It is not denied by appellant that an action can be maintained by plaintiff against the defendant, as executor of Robert Dunlop, deceased, for damages for a breach of covenants contained in the lease, if such action is otherwise maintainable. The counsel for the appellant insists that the referee erred in finding that the mill and elevator could have been rebuilt before the expiration of the term of the lease, and, also, if it could be so rebuilt, in finding that the value of the lease for the unexpired term was $2,000; that the evidence shows that to remove the debris, make contracts, do the mason and carpenter work, and put the machinery in so large a structure, would have taken until after the time of the expiration of the lease; also, that there is no sufficient or satisfactory proof that a lease for six weeks of such a tenement, to be used for such a purpose, and when the lessee, in the six weeks, would be compelled to move in, with all necessary material to work with, and also to move out, is of any value whatever. There was evidence given before the referee on this question, some of which tends strongly to sustain the position of the defendant, and some tends to show that the building could have been completed by the middle of September, 1883, and that the value of the unexpired term of the lease was over $2,000. The matter was discussed before the learned referee, who heard the evidence, and, it appears from his opinion, carefully considered by him. The claim of defendant has great force, and, on carefully reading and considering the evidence given, it must be admitted that the case is a close one, and one where it was possible for the referee to have reached a different conclusion. But a reversal on the facts will be granted only where it can be seen, by a review of all the evidence, that the finding was erroneous. Wheeler v. Miller, 24 Hun, 545. We will not undertake to discuss the evidence given on the trial. We have examined it with care, and have considered the briefs presented by the respective counsel; and we are not prepared to hold that the learned referee, who appears to have carefully considered the testimony taken before him, has reached an erroneous conclusion in his report.

It is claimed that the referee erred in overruling the objections to this question, asked of plaintiff as a witness: “If the property had been rebuilt prior to the 1st of November, 1883, and restored to the condition it was in immediately preceding the fire, what, in your opinion, would have been the value per month of the unexpired term of the lease, over and above the rent reserved?” The objection was not made that the witness was not competent to give an opinion. He had, just before this question was asked, described the business done the year before the fire, stated the increase of the business, the monthly receipts and expenses and profits, in detail, and stated all the facts and circumstances showing the nature of the business, and how it was carried on, and was then asked the above question. We think the question was proper, under the holding of the court of appeals in Mitchell v. Read, 84 N. Y. 556, 559. In that case the witness, to whom the amount of the net profits of the premises for several years past was stated in an hypothethical question, was allowed to state the value of the new lease. Had the witness in that case known and stated in his testimony the same facts that were described to him in the hypothetical question, he would have been fully as competent to state the value of the lease. See, also, Taylor v. Bradley, 39 N. Y. 145, cited in Wakeman v. Manufacturing Co., 101 N. Y. 211, 212, 4 N. E. Rep. 264. The case of Norman v. Wells, 17 Wend. 136, 163, cited by appell ant, is not quite parallel to this. There the action was for damages for the breach of a covenant in a lease where the lessor had agreed not to let another mill-site for a mill to saw mahogany. It was held that the opinion of witnesses as to the probable amount of damages resulting from a violation of the covenant was not-permissible. See pages 161-163. In Ferguson v. Hubbell, 97 N. Y. 507, in an action for damages for defendant’s setting fire to brush on his land, which injured plaintiff, it was held that the witnesses could not swear that in their opinion it was a proper time to burn fallow. It was held not a case for expert testimony; that the opinion of experts may not be received when the inquiry is as to a subject not requiring any peculiar habit or study to understand it. It must relate to some trade, profession, etc. To the same effect is the case of Wakeman v. Manufacturing Co., 101 N. Y. 217, 4 N. E. Rep. 264. But it was held in Mitchell v. Read, supra, pages 556, 558, that it was proper to ask an old and experienced hotel-keeper the value of an hotel lease. This doctrine was approved by Earl, J., in Wakeman v. Manufacturing Co., supra, page 218, 101 N. Y., and pages 271, 272, 4 N. E. Rep. It follows that the opinion of an experienced miller may be asked as to the value of a mill lease.

It is claimed that the referee erred in overruling the objections to the question asked the witness Fleisehmann, as follows: “How long, in your opinion, wmuld it have taken to remove the debris, to permit the rebuilding to commence?” The witness was an architect, and had sworn that he had a practical, personal experience in removing debris of buildings destroyed by fire; had himself had debris removed, and had seen it removed by others. We think that he was shown competent to answer the question.

Appellant also claims that the referee erred in sustaining the objections to defendant’s offer in evidence of the book kept by the witness Matthew J. Wallace, for his father, to show the amount expended from time to time, the number of men employed, and the work at which they were employed, on the building. The case does not disclose that the book was competent evidence. It does not appear that it was correctly kept, or that it was an original book. At the best, it was a written statement of defendant’s deceased agent. 27o preliminary proof appears in the case to render the evidence competent.

It is claimed that the referee erred in overruling the objections to the question asked the witness Fleisehmann, “Whether it would have been safe to run up the brick walls in six weeks.” Fleisehmann was an architect, and had testified that he had experience in erecting a large number of buildings, and had been in the habit of observing the length of time required to procure materials, and to do the work. We think that he was shown competent to answer the question. The foregoing are all the exceptions taken by appellant to the reception or exclusion of evidence, to which our attention is called by his points.

The appellant further claims that the referee erred in allowing interest on the damages. We are inclined to think that this objection is well taken. Plaintiff’s claim was unliquidated; and hence it was not proper to allow interest on the damages sustained. See Mansfield v. Railroad Co., 21 N. E. Rep 735, and cases cited; McMaster v. State, 108 N. Y. 557, 15 N. E. Rep. 417. The judgment should be modified by striking out the interest included therein up to the dale of the referee’s report, and, as so modified, affirmed, without costs. All concur.  