
    Grauel v. Soeller.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    1. Landlord and Tenant—Rights and Liabilities—Lease.
    Defendant leased to plaintiff an hotel, intending to reserve a barber-shop, which was a part of the hotel. Plaintiff supposed the lease included the barber-shop, which was not expressly reserved. Held, that the lease included the shop, and there was no mutual mistake, and the failure of the contract to express defendant’s views of its terms was no defense to an action for leasing the shop to a third person.
    2. Same—Evidence.
    Evidence that the barber-shop was necessary to the hotel was proper.
    3. Same.
    A covenant in the lease that plaintiff should not underlet had no bearing on the question whether the barber-shop was reserved or not.
    4. Same—Pleading and Proof.
    The complaint alleged a lease by defendant to plaintiff and defendant’s leasing of a portion of the premises to a third person as her tenant. The answer denied the leasing of the barber-shop and asked for a reformation of the lease in that respect. Held, that the form of the action was immaterial, and that a motion for a nonsuit 'because the complaint also alleged an entry and eviction, while the evidence showed that the tenant was in possession of the barber-shop when plaintiff took possession of the hotel, and remained in possession without objection by plaintiff, but refused to pay rent when demanded by plaintiff at the end of the season, alleging payment to defendant, was properly denied. '
    
    Appeal from circuit court, Kings county.
    Action by Henry Grauel against Mary Soeller. The complaint set out a lease of a hotel by defendant to plaintiff, and averred compliance therewith on plaintiff’s part, and that without plaintiff’s permission, and in violation of the lease, “defendant has entered on the premises demised as aforesaid, and on or about the 18th day of April, 1887, placed in possession of part thereof, either as her agent or tenant, one Charles Nissen, who claims under defendant the right to occupy, and has for a long time past occupied, a portion of said house for the purpose of a barber-shop,” by reason whereof plaintiff sustained damage, etc. The term of plaintiff’s lease began April 1, 1887. Plaintiff’s evidence showed that Nissen was in possession of the shop ■at the time and before plaintiff took possession of the hotel at the beginning of his term, and remained there, and that plaintiff made no objection, but at the end of the season demanded the rent, which Nissen said he had paid to defendant. Defendant asked for a nonsuit because there was no proof of entry and eviction. Burtis was the scrivener who drew the lease. V'erdict for plaintiff. New trial denied, and defendant appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      Carpenter & Roderick, for appellant. Abbott Bi-os., for respondent.
   Barnard, P. J.

On the 19th day of January, 1887, the defendant gave a written lease to the plaintiff of premises described therein as follows: “All that certain house and lot known as the * Island View Hotel,’ for the term of five years from the 1st of April, 1887.” The hotel building is a double house, with a veranda in front, and the veranda roof is extended at the sides so as to cover a room, which is the barber-shop, at one end of the house, and at the other end to cover a room used as a billiard room. The controversy is about the barber-shop. The proof was conflicting whether the barber-shop was reserved when the lease was given. The jury have found that it was not expressly reserved, but that the landlord intended to reserve it, and the tenant supposed he got it; and that, in point of fact, the barber-shop is part of the Island View Hotel. The reception of the fact that a barber-shop was necessary to the hotel, was proper. The question was whether the plaintiff hired the barber-shop. The refusal of the court to permit the defendant to testify to her instructions given to Mr. Burtis in regard to the lease was subsequently cured by admitting the rejected testimony. She testified that she told him that the lease was to be for five years, payment in three terms, without the barber-shop. The case became, then, asimple one. There was no reservation outside of the lease. The lease included the barber-shop by its description of the property, and the defendant did not intend to give a lease of the barber-shop. There was no mutual mistake. The contract did not express the defendant’s view of its terms. This is no defense to the contract. • Jackson v. Andrews, 59 N. Y. 244. The form of the action is not objectionable. The facts are stated. The averment is that the defendant rented premises to plaintiff at a designated rent, and without plaintiff’s permission rented out a portion of it to a third party as her tenant. The answer denied the leasing of the barber-shop, and asked a reformation of the contract to make it express the agreement between the parties. There was no error in refusing to charge upon the effect of the covenant that the lessee should not under-let the premises, or any part thereof, as bearing upon the disputed question of fact whether the barber-shop was reserved or not. We think the trial judge was right, and that it had no bearing on the case. The judgment should therefore be affirmed, with costs. All concur.  