
    Smith v. McArthur.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    .Evidence—Competency.
    A letter from a landlord to a third person, respecting the terms of the tenant’s occupation the year before, is not admissible in evidence on the question whether a permission to gather crops when ripe, contained in a notice to quit, served by the landlord on the tenant, was on condition that the tenant should pay arrears of rent.
    Appeal from Queens county court.
    Action byPhebe A. Smith against John McArthur. Judgment for defendant, and plaintiff appeals. The letter mentioned in the opinion was from defendant to a third person, and concerned the terms of the occupation of defendant’s land by plaintiff’s husband.
    Argued before Barnard, P. J., and Pratt, J.
    
      J. M. & T. B. Seaman, (Benj. W. Downing, of counsel,) for appellant. <Thas. J. Patterson,' for respondent.
   Barnard, P. J.

This was an action for damages for an assault. The jury have found against the claim, and the appeal practically brings up only the correctness of the rulings on the trial. The general facts are not in dispute. The defendant is the owner of certain premises in Queens county, and the plaintiff’s husband was the tenant of the same under the defendant until the 28th of September, 1886. On that day the tenant and his family moved out of the house, and the landlord took possession. It was a question on the trial whether this removal from the house was made with the intent to vacate the •whole premises, or only the house, reserving the right to gather the crops then growing. The rent was two months in arrears, and the removal was in pursuance of a notice to remove on or before October 1,1886, which it seems the landlord had the right to demand. This notice contained a privilege that the tenant should have the right to take the crops when fit to gather. It was again a question whether this permission was upon the condition that the tenant paid the rent. The parties do not agree on this subject, and the disagreement went to the jury. The letter from the landlord in respect to the occupation of 1885 has no bearing on this question. It was subject to the same conditions as to the payment of the rent as was the notice given to remove from the premises. The proof offered as to the removal of the roof for the purpose of repairs had no importance. Both parties admitted that the roof was repaired by consent of the tenant, and, if the surrender was made of the premises, it was good, even if more discomfort was occasioned by the repair than was expected. The appeal-book discloses no error, and the judgment should therefore be affirmed, with costs.

Pratt, J., concurs.  