Levy v. Shellsey
30 Misc. 789
N.Y. App. Term.
1900
Check Treatment
Per Curiam.

This is an appeal from an order directing a precept to issue dispossessing the defendants from certain premises *790held under a lease from plaintiff. The lease was dated December 6, 1898, for a period of five years and one month at the rate of $4,700 per annum, payable in equal monthly payments in advance on the first of each month, making each monthly instalment $391.67. It was provided in the lease that the tenants should deposit the sum of $1,100 with the landlord as security, upon which the tenants were to receive “ interest at the legal rate to be paid annually by the parties of the first part on the amount of security.” It was stipulated at the trial that the tenants deposited $800 with the landlord under this agreement and there is no evidence that any greater sum than this was ever deposited. The tenants testified something about the deposit of an additional sum of $75, but, on motion of the landlord’s counsel, without objection or exception on the part of counsel representing the tenants, this evidence was stricken out, leaving on the record no evidence of any deposit beyond the $800. On the trial both parties called witnesses to testify to what was said by the parties at the time of making the lease, as to their meaning and intention as to the rate of interest to be paid. This evidence was permitted to be introduced without objection or exception by either counsel, and the learned justice decided that what was meant by “ legal interest ” was five per cent. Notwithstanding the absence of objection and exception, we feel impelled to reverse his finding on this point, for, even if the incompetent evidence is considered, the weight of the whole evidence is so overwhelmingly in favor of the tenants’ contention that, when the parties agreed to “legal interest ”, they meant legal interest, that is, six per cent, per annum, that it is evident that substantial justice was not done in the court below. The order appealed from must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Present: Truax, P. J.; Scott and Dugro, JJ.

Order reversed and new trial ordered, with costs to appellants to abide event.