4 Barb. 256 | N.Y. Sup. Ct. | 1848
The action in the court below was covenant for rent, brought on a sealed indenture of lease, executed on the 24th of June, 1846, demising a tavern stand situated at a place near Rome called Newville, for the term of nine months from the 1st of July, 1846, at a stipulated rent. The lease contained the following clause. And the said parties of the first part agree to put the buildings and premises in suitable repair for the same to be occupied for public entertainment by the said parties of the second part; and also to keep in repair the aqueduct made for the benefit of the said premises; or dig a well on said premises for the accommodation of the same.”
I. When the plaintiff rested his case, the defendant moved for a nonsuit, on the ground that there had been no proof that the premises had been put in repair, before occupation was taken under the lease; and that one of the defendants, (Durst,) never did take actual possession of the premises with the other defendant. The nonsuit was refused, and we think rightly. The taking of possession by one of the lessees, was in law a possession by both; and also, in our judgment, the fact that the premises were out of repair, was a matter of defence to be proved by the defendants.
II. A more difficult question arises out of the rejection of certain evidence offered by the defendants—the history of which offers and rejections extends from folio 55 to folio 66, of the
Again. The great objection to this species of evidence is that it calls for the opinion of the witness upon a question on which the opinions of witnesses are not evidence. The diminution in the annual, quarterly, or daily value of the premises, occasioned by the withdrawal of this water; or, in other words, the amount of the damage of the defendants arising from such withdrawal or deprivation, would depend for its just determination, not on any professional skill or knowledge of the witness, but on a vast variety of facts, from which any sensible man could form a judgment as well as a tavern keeper living in another town. The situation of the tavern, the amount of business, or custom, it enjoyed, the kind of customers tvho frequented it, the distance from a stream, well, spring, nr other supply of water, and perhaps the expense of digging a well, would all be material facts on which to found a correct opinion. When these facts should be spread before a jury, with the length of time during which the water was withheld, the jury would be enabled to give a reasonable estimate of the damage. But the evidence does not show that the witness had the requisite
The evidence offered in this case in relation to the damage sustained by occasion of the cellar, out-houses and barns, &c. being out of repair, is subject to the same objection. The facts showing the nature and extent of the dilapidations, and perhaps the cost of materials and labor to put the premises in repair, the time during which the same were allowed to be out of repair, the location of the tavern, and the amount of business and custom it enjoyed, were the proper items of evidence to inform the judgment of the jurors upon the extent of the inconvenience and the amount of the damages.
IY. In relation to the proposition which the defendants* counsel desired the court to charge as matter of law, we have aI-> ready expressed our opinion that the view of the court was correct. One of the defendants (whose act is in law the act of both,) waived the condition precedent of putting the premises in repair before entering into possession; and cannot, nor can the other defendant-, refuse to pay rent for the reason that the premises were not in repair. The defendants were allowed to recoupe to the extent of the damage arising from this cause; and that was all they were entitled to do.
Such is the result of our opinion on the several points presented in this cause-. We are aware that some of the questions rejected by the court below were on the border line which separates competent from incompetent evidence, and might perhaps have been allowed without the infringement of any important principle. And unless the other evidence which was admitted by the court, had appeared to us to give the defendants a full opportunity of presenting their entire claim for damages) or, in other words, if we were not of the opinion that the kind and range of testimony which the court allowed were not fully ade
The judgment must be affirmed.