82 N.Y.S. 127 | N.Y. App. Div. | 1903
The question presented on this appeal is as to the liability of the defendants for rent for June, 1902, under a lease of the premises No. 55 Warren street in the city of New York. The plaintiffs leased to the defendants the premises in question. The rent reserved was $166.67 per month. A fire occurred on the premises on March 15, 1902, which rendered the premises temporarily untenantable. The rent for the month of March having been paid in advance, it was conceded that the defendants were entitled to a credit for one-half of the rent that had been paid for that month. The plaintiffs allege that the premises were repaired so as to be tenantable on the first of June, of which the defendants had notice; and that, therefore, the plaintiffs were entitled to recover the sum of $166.67 for the month of June, less $83.34, one-half of the March rent which had been received by the plaintiffs and for which the defendants were entitled to credit.
The answer alleged that the defendants did not occupy the premises until June sixteenth and consequently the defendants were liable only for one-half of the June rent. The only question in dispute was as to the condition of the premises between June first and June sixteenth. The plaintiffs introduced in evidence the lease •and rested. One of the defendants was then called and testified that a fire occurred on the premises on March 15, 1902; that he remembered that men sent by the plaintiffs were working in the building on June seventh; that that was the last day that they were working there; that he had a conversation with the contractor and architect in charge of the repairs on May thirty-first and with them went over the building; that the architect told the witness that he would have additional work done; that at that time the ceiling needed to be overhauled and painted again; and the sidewalls and the basement and the sub-cellar were to be kalsomined; that this kalsomining was . being done until the seventh of June; that the defendants returned to the premises and occupied them on the afternoon of June fourteenth; that from the time of the fire down to June fourteenth a part of the defendants’ stock remained upon the premises, although they had their office elsewhere; that some of their employees also remained in the premises during all this period; and that on the seventh of June
The clause of the lease in question provided that “ in case the premises hereby leased shall be partially damaged by fire, the same shall be
There is another question that is presented to which attention should he called. When plaintiffs’ counsel was summing up he called the attention of the jury to the allegations of the defendants’ answer, when the defendants’ counsel objected, and the court thereupon ruled that counsel was not entitled to read from or refer to the contents of a pleading without putting it in evidence, to which ruling the plaintiffs’ counsel excepted. This was clearly error. The allegations of a pleading are admissions upon the record, and are not only proper for the consideration of the jury, but are binding upon the party making them. Such admissions are always before the court and jury upon a trial of the case. (Tisdale v. President, etc., D. & H. C. Co., 116 N. Y. 416; Holmes v. Jones, 121 id. 466.) It was clearly error, therefore, for the court to refuse to allow the counsel to call the attention of the jury upon the decision of this question of fact to the admissions contained in the answer.
It follows that the judgment and' order appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.
Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event.