
    Henry Schumacher et al., Appellants, v. Milton V. Waring, Respondent.
    (New York Common Pleas—Additional General Term,
    February, 1894.)
    On appeal from the District Courts the Common Pleas may reverse the judgment if it is against the weight of evidence; and in determining the weight it is proper to consider the quality of the evidence, the interest of the witnesses in the issue of the trial, and the compatibility and consistency of their several statements with the truth as it appears from attendant circumstances.
    In an action to recover rent which accrued after an abandonment of the premises, there was a conflict as to the terms of the lease, which was an oral one. Plaintiff and his wife and daughter, and the agent who procured the making of the lease, testified that it was for one year, while defendant and his brother testified that it was from month to month. It also appeared that no rent was to be charged for the first month, and that at the time of the letting plaintiff paid the agent commissions on a year’s rental. Held, that these facts sustained the plaintiff’s version, and that a judgment in favor of defendant was against the weight of evidence.
    Appeal from a judgment for defendant, rendered by the District Court in the city of New York for the first judicial district.
    Action to recover monthly installments of rent alleged to have accrued under a lease for one year.
    
      Babe é¡ Keller, for appellants.
    
      Charles 8. Willia?ns, for respondent.
   Bischoff, J.

On appeal from the District Courts it is within our province to reverse the judgment if it is against the weight of the evidence (Curley v. Tomlinson, 5 Daly, 283; Macniffe v. Ludington, 13 Abb. N. C. 407; Fixam v. Brown, 3 N. Y. St. Repr. 608); and in determining the weight it is proper to consider the quality of the evidence, the interest of the witnesses in the issue of the trial, and the compatibility and consistency of their several statements with the truth as it may appear from attendant circumstances. Brown v. Sullivan, 1 Misc. Rep. 161; 48 N. Y. St. Repr. 685 ; Siefke v. Siefke, 3 Misc. Rep. 81; 55 N. Y. St. Repr. 388.

Plaintiffs sued defendant for the monthly installment of the rent of a flat which they conceded had accrued subsequent to defendant’s abandonment of the demised premises, and the only issue litigated was whether the lease was for a year, as plaintiffs maintained, or from month to month, as defendant said it was. The lease was oral, and plaintiff, Henry Schumacher, his wife and daughter, and the agent through whose means defendant was secured as a tenant, testified, each in a positive manner, that at the time of the letting it was stated to be for one year. Defendant and his brother, on the other hand, were equally emphatic that it was for one month, or from month to month. Which of these irreconcilable statements was probably true ? Each of the witnesses who was a party to the action was a witness interested in the issue of the trial, and his testimony was, therefore, to be considered in the light of that interest (Elwood v. W. U. Tel. Co., 45 N. Y. 549 ; Wohlfahrt v. Beckert, 92 id. 490), and the remaining witnesses may be suspected of partiality for the parties on whose behalf they were respectively called to testify. Two circumstances, however, the first appearing from testimony wholly unchallenged, the other conceded, determine the test of probability in plaintiffs’ favor, and make their contention transparent with verity. At the time of the letting, and when neither party could reasonably have contemplated a controversy concerning the terms of the lease, plaintiffs paid the agent’s commissions on a year’s rental of the premises demised to defendant. Ho rent was to be charged or paid for the first month of defendant’s occupancy of the demised premises, and it is not a plausible story, in view of that fact, that at the end of that month defendant was to be at liberty to vacate the premises without liability for future rent.

The judgment should be reversed and a new trial ordered, with costs to the party there prevailing.

Gtib&ebioh, J., concurs.

Judgment reversed and new trial ordered, with costs to the party there prevailing.  