134 N.Y. 349 | NY | 1892
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *351
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *352 The defendant's motions for a nonsuit were properly denied. They were based upon the assumption, which, we think, was untenable as a matter of law, that the relation of landlord and tenant continued between the parties, after the destruction of the buildings by fire until the plaintiff gave notice of his intention to surrender the leasehold premises, or at least until he did surrender them.
His requests to go to the jury were coupled with the same assumptions of law, and he thereupon asked the instruction that if the plaintiff did not give the notice of his intention to surrender the premises until the ninth of August, or remained in possession of the premises until that date, the plaintiff was not entitled to a verdict.
The facts in these respects were as assumed by the defendant, but we think the law was not.
The statute, Ch. 345, Laws of 1860, dissolved the relation of landlord and tenant between the parties unless the plaintiff elected that it should continue. (Smith v. Kerr,
The defendant also moved for a nonsuit because, as he assumed, the plaintiff was bound to remove the dead bodies of the horses, not only under the terms of the lease which bound him to obey the orders of the board of health, but also apart from the terms of the lease, as the owner of such dead bodies. *354
If the lease was terminated by the statute upon the destruction of the buildings, it is clear that the plaintiff as tenant and as between himself and his landlord, was not bound by its terms to perform any act in respect to the premises which the fire made necessary to be performed. Such performance could not be made until after the relation of landlord and tenant had ceased. Nor would the tenant in such case, apart from the terms of the lease, be obliged to remove the dead bodies of the horses. The act of 1860, in case of a dissolution of the relation of landlord and tenant under it, enables the tenant to quit and surrender the premises, and discharges him from liability for rent for the unexpired term. Manifestly, the damage to the real estate and the burden cast upon it by the fire must in such case be borne by the landlord and not by the tenant. The tenant is free to depart from the untenantable premises; the landlord resumes possession of his premises in the condition the fire has left them.
The defendant after the denial of his motions and requests above considered moved the court to direct a verdict for the defendant. For the reasons already considered this motion was properly denied. No request which it was proper for the court to grant being made to submit any question of fact to the jury, the court did not err in assuming that the defendant did not desire to go to the jury upon any question of fact touching the plaintiff's intention to continue the tenancy, or election to do so, and hence did not err in deciding upon the evidence that the plaintiff had no such intention, nor made such election, and thereupon directing a verdict for the plaintiff.
A question of the admissibility of evidence is presented. After defendant read from plaintiff's letter of August ninth, the extract quoted above, with respect to the removal of his property and withdrawal of his watchman, the plaintiff was permitted to read from the same letter an extract to the effect that the bill inclosed in the letter was for extra help hired pursuant to defendant's directions and instructions. This was the bill for $465.50.
While this part of plaintiff's letter did not relate to the *355
same subject as the part read by the defendant, and did not modify or explain it (Rouse v. Whited,
As no error of the trial court requires a reversal, and as the General Term modified the judgment in defendant's favor, and the plaintiff does not appeal, the judgment of the General Term should be affirmed with costs.
All concur, except VANN, J., dissenting.
Judgment affirmed.