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ing, asked the defendants if they would take in its stead either suite 1306 or 1706, both of which were similar in location, arrangement of rooms, and outlook, being on higher floors of the building. Suite 1306 was at the time occupied by a tenant named Fraser, to whom the plaintiff desired to give the option to remain therein or to take 1706 instead. By a verbal agreement between the defendant Fergusson and the plaintiff an arrangement was made that, pending Fraser's decision, the defendants were to occupy suite 1707-1708 at the same rental as called for in the lease. This arrangement was carried out, and defendants occupied the last-named rooms for a portion of the month of May, paying $30 therefor, and continued therein up to July 21, 1908, paying on the 1st of June and on the 1st of July $125 monthly in advance in accordance with the terms of the written lease for suite 506 and the oral modification above mentioned, which was evidenced by the following letter:

"New York, May 13, 1908.

"Broadway Building Company, 170 Broadway, New York-Dear Sirs: Referring to our lease with you of suite 506, we would prefer taking the same suite higher up, and, as we understand there is possibility of getting either suite 1706 (with windows the same as 506) or 1306, pending such, we are quite willing to occupy suite 1707-1708.

"Yours truly,

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S. W. Fergusson. "Henry Ide Willey,

"By S. W. Ferguson."

As is shown above, this "pending such" was understood to mean pending the decision of the tenant Fraser as to which of the two suites, 1306 or 1706, he preferred, the defendants to have the other; and plaintiff's president, Browne, specifically so stated on the trial as follows:

"We now had got possession of 1706, and we offered it to Mr. Fraser, and that, if Mr. Fraser refused to take 1706, instead of 1306, then the Colonel could have 1706; on the understanding that he could have his choice, I mean, at our option, depending on Mr. Fraser's decision, he was to have either 1306 or 1706, and to occupy, pending that decision, rooms 1707 and 1708 at the same rental."

Mr. Browne was asked on cross-examination:

"Q. When, if ever, did this tenant, Fraser, decide as to what course he would take in regard to remaining in 1306 or taking 1706? A. Notwithstanding the endeavors we made to get him to make a decision, he has not yet made a decision."

This was on January 7th, 1909. It further appears that the defendants were continually demanding possession of the suite promised them, and finally they got tired of waiting for Fraser to make up his mind and moved out. Willey stated that he remembered handing Mr. Rowley a check for the rent and saying:

"This is the last one, and we are going out, because of the fact that you have not within five or six days, or within five or six weeks, furnished us with the apartments that we rented and you promised us."

A letter from Mr. Browne under date of July 20, 1908, to the defendants, gave the tenants permission to use the elevators at 5 o'clock in the evening of that day for removing their furniture and effects,

and contained a notification that the plaintiff would insist upon "your lease with us expiring May 1, 1909, and that the same is to continue in full force and effect." The tenants moved the following day, July 21, 1908. Upon the foregoing facts the learned trial justice gave judgment in both actions for plaintiff.

It was the plaintiff's contention that the oral arrangement bound the defendants to occupy and pay for rooms, which were not within the contemplation of the parties and not such as they desired, until such time as the tenant, Fraser, should decide whether he would take 1706 or remain in 1306, even if he did not decide for the whole term for which the lease of 506 to the defendants was made. On his brief plaintiff contends that, because the oral contract was for an indefinite term, a month's notice must have been given to terminate it. But that does not justify, even if correct, which it is not, the judgment for the September rent, since actual moving on July 21st is at least a month's notice of an intention to abandon on September 1st.

Neither of the above contentions is sound. The arrangement to occupy 1707-1708 pending Fraser's decision could not be construed to bind the defendants to remain in those rooms more than a reasonable time; and at the most, inasmuch as they paid while in possession of those rooms a monthly rental in advance, their tenancy cannot be regarded as for more than from month to month. The notice necessary to terminate such a tenancy is one given within a reasonable time, and 10 days' notice has been frequently held to be sufficient under such circumstances. The tenants were within their rights in moving, and the judgments in both actions must be reversed, and the complaints dismissed, with costs.

Judgments in both actions reversed, and the complaints dismissed. with costs to the appellants in this court and in the court below.

ERNEST TRIBELHORN, Inc., v. HANAVAN.

(Supreme Court, Appellate Term. May 7, 1909.)

EVIDENCE (8 442*)-PAROL EVIDENCE-LEASES.

An oral agreement by a landlord to make repairs, made as an inducement to the execution of a lease silent on the subject, at or before the signing of the lease, together with proof that the repairs were not completed and that the tenant did not occupy the premises, may be shown in an action for rent due under the written lease.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. § 442.*]

Goff, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Ernest Tribelhorn, Incorporated, against George B. Hanavan.. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Royal H. Weller, for appellant.

Norwood & Marden, for respondent.

DAYTON, J. As an inducement, plaintiff promised to make certain repairs at or before the signing of the lease, as is fully shown by the testimony admitted. Some pertinent questions on this head were excluded. The court directed a verdict for the plaintiff. The case of Clenighan v. McFarland (Com. Pl.) 11 N. Y. Supp. 719, seems to be "on all fours" with that at bar, as to the right to the defense here interposed. The jury should have been allowed to pass upon any disputed questions of fact.

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

GILDERSLEEVE, P. J., concurs.

GOFF, J. (dissenting). Plaintiff rented certain premises to defendant by lease for a year. Before signing the lease, defendant obtained from plaintiff a promise that the latter would make repairs to walls and floor. The defendant then signed the lease in the original form, without requesting any alteration of its conditions. The repairs were never completed, and defendant did not occupy the premises. The landlord now sues for rent due under the lease. The only defense which was put in is contained in paragraph 3 of defendant's answer. It reads:

"Defendant alleges that by reason of the failure of this plaintiff to perform his part of said agreement said instrument in writing did not become operative or binding between them."

Although defendant in his answer characterizes the agreement to repair as "an agreement contemporaneous with, independent of, and collateral to said instrument in writing," he does not, either in his pleading, upon the trial, or on this appeal set up his damages for breach of the collateral agreement as grounds for a counterclaim as is customary. Instead he insists that his "collateral agreement" shou be read into the written contract in such a manner that the written contract should "not become operative" until the repairs were all completed. It is difficult to conceive of a more potent case of the alteration of a complete written contract by a verbal agreement between the parties. That such a construction cannot for a moment be permitted is so fundamental that the citation of authorities would be wholly superfluous.

The case at bar differs from the case of Clenighan v. McFarland (Com. Pl.) 11 N. Y. Supp. 719, cited by appellant, as in that case the validity of the lease was admitted and the damages for the breach set up as a counterclaim. The counterclaim exceeded the rent in arrears. No attempt was made in that case to alter or question the validity of the written lease in any way, as does the appellant at bar. The two stand upon an entirely different footing. Had appellant sought to introduce oral evidence to explain an ambiguous passage, or

had the writing been but a fragmentary memorandum of a complete contract, the case would have been different, and the evidence would then have been received; but such was not the case. Although this court is mindful of the fact that pleadings in the Municipal Court should be freely construed in the interests of justice, even when they are verified as in the case at bar, yet a recovery cannot be permitted where the only ground urged is one prohibited by the law and no amendment has been sought either below or here.

In view of all the circumstances, the judgment below, directing a verdict for the plaintiff, should be affirmed, with costs.

TICHENOR-GRAND CO. v. WEINGARTEN.

(Supreme Court, Appellate Term. May 7, 1909.)

1. TROVER AND CONVERSION (§ 32*)-PLEADING-NATURE OF COMPLAINT. Where the complaint alleged that defendant hired three horses for an agreed term and price, and two of the horses were returned, but he neglected to return the third horse after demand, the complaint was not in conversion, as the horse was held under a bailment, and as bailee defendant assumed obligations other than the return of the horse.

[Ed. Note. For other cases, see Trover and Conversion, Dec. Dig. § 32.*]

2. BAILMENT (§ 31*)-ACTION AGAINST BAILEE-EVIDENCE-Negligence.

In an action for failure to return a horse hired to defendant, which was shot while in defendant's possession after its back was discovered to be broken, evidence held to show that the injury to the horse was not caused by defendant's negligence.

[Ed. Note. For other cases, see Bailment, Dec. Dig. § 31.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by the Tichenor-Grand Company against David Weingarten. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

William Paul Buchler, for appellant.
Manley & Grand, for respondent.

PER CURIAM. The complaint alleges that on June 6, 1908, defendant hired three saddle horses from plaintiff at an agreed term and price, and promised to return the horses at the end of the period; that two of the horses were returned by him, but he neglected to return the third horse, of the value of $400, after demand therefor. These allegations (except the hiring) were denied. The pleadings were verified.

Defendant claims that the complaint is in conversion. This is untenable, for the reason that the horse in question was held by him under a contract of bailment, and as such bailee he assumed obligations in addition to the return of the horse in question. The 224 type

written pages of testimony disclose that on September 16, 1908, this horse, while gently ridden by a boy weighing about 120 pounds, showed signs of weakness. The boy dismounted. The horse was walked to a stable, where a veterinary discovered a fracture of the backbone, whereupon the horse was shot. It further appeared that since the hiring the horse had been used for jumping; also that the horse was in the sole charge of a stableman hired by the defendant on the recommendation of the plaintiff-a concededly careful man. Plaintiff claimed that the use of the horse for jumping was in violation of the purpose of the hiring as a "saddle horse" and that jumping was a common cause of fracture of the backbone of a horse, which injury would or might remain unrevealed for a considerable period of time. A mass of expert testimony on this subject was offered by plaintiff. The trial court, without a jury, found for the plaintiff in the sum of $275, on the ground that defendant had failed to show by preponderance that an injury that does not ordinarily occur was not incurred by his negligence, and proceeds as follows:

"I am convinced from the testimony that the horse started out on the morning of the accident with all of her bones in apparent good order, and during the hour or so he was out her back was broken. The statement of the boys who rode, and were with her on the ride, that nothing happened during that ride to cause such an extraordinary occurrence, is not to my miud such explanation as the law requires of a bailee under those circumstances."

If the horse started out with all her bones in apparent good order, with the approval of the competent stableman recommended by the plaintiff, and if, as appears, the horse was being gently ridden by a boy, in company with others who say that nothing happened, the only possible explanation is the theory of the experts that the fracture of the backbone was the possible result of some previous jumping of the horse. The evidence shows that the jumping consisted of a bar which could be raised to five feet, but was not used at that height, and that the stableman mentioned always supervised that procedure, and that the horse was jumped for the last time about a week before the fracture. Barr, the stableman, testified that when this horse came to defendant it was in poor physical condition, that he sometimes jumped this horse, that it was proper for the horse to be jumped, and that the horse had not been injured by the jumping, as her poor condition related only to her being thin in flesh. The expert testimony was but speculative hypothesis. The "explanation" gathered from the record. is sufficient to show that defendant cannot be charged with negligence for this occurrence. To hold him liable for the value of this horse in the circumstances would be unjust.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

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