14 Daly 529 | New York Court of Common Pleas | 1888
It is evident that the crucial question to be settled at the beginning of the trial in this action was, what was the condition of the premises in question at the time of the original letting thereof to defendant’s intestate, on or about the 1st day of February, 1874? Plaintiff certainly could not claim that the lessee was bound to put them into any better condition than when he originally took them. ■ The lease required the defendant to restore the building to its original condition; and the determination of what this original condition was, must be the essential test by which to try any claim that the plaintiff may assert. The referee has found that the building was materially damaged during Mr. Freeborn’s tenancy, and has reported in plaintiff’s favor for what he estimates to be the amount of such damage. In
It is also apparent that this fundamental error resulted in what would be a very serious practical injustice if this judgment were allowed to stand. The plaintiff testified that, after the defendant’s intestate left the premises, he-paid the sum of $913.47 for a carpenter’s bill to put the premises into good and tenantable condition. He repudiates the idea that any of this money was-expended in permanent alterations, and in converting the building from a sugar refinery into a warehouse. But, even on his own theory that this sum covered merely the cost of putting the building into an ordinary tenantablecondition for general purposes, it is evident that the defendant is charged with a large amount in excess of what could possibly be his just liability. The referee allowed the carpenter’s bill in its entirety, but this covered the-whole price for labor and materials necessitated by the rotting of the floors- and beams, and by the cutting up and defacement of floors on account of the insertion therein and attachment thereto of machinery and utensils of the refinery, which had been made long before Mr. Freeborn ever saw the premises. The effect of it would be to compel defendant to pay the whole cost of carpenter’s work required to restore the building to the condition it was in in 1860, before it had ever been used as a sugar refinery. It is true that the carpenter himself testifies that this bill of his covered only the repairs made necessary by the damage to the building occurring during Mr. Freeborn’s tenancy. This, besides being as general in its character as plaintiff’s own testimony, is necessarily pure inference. I cannot see that such testimony has any other effect than to show bias on the part of the witness. He was not acquainted with the-condition of the building at the time of the making of the lease in 1874, and therefore any opinion upon that subject which he expresses is founded on mere-hearsay. As above shown, the entire carpenter’s bill paid by the plaintiff has been allowed by the referee without any deduction; and there is no evidence-in the case which would enable us, even if we were so disposed, to reduce the judgment. Ho facts are given tending to show how much of the damage to the floors and beams is attributable to the rotting thereof before Mr. Freeborn’s tenancy began, and the defacements of the building by reason of its original fitting up as a sugar refinery, and how much of such damage can be properly held' to have been occasioned during Mr. Freeborn’s tenancy. This-error, which is embodied in the seventh finding of fact of the referee’s report, is in itself sufficient to necessitate a new trial. But on such trial it is to be desired that, in addition to requiring succinct and specific evidence of the state of the floors and beams at the beginning of Freeborn’s tenancy, similar evidence be insisted upon as to the condition of the walls at the same time. The only testimony on this point on the present trial was that of the plaintiff himself, and consisted of the same vague and general statements which he gave in regard to the floors. At least two of the defendant’s witnesses testified that the east wall of the building was, in 1874, warped, out of plumb, and in a dangerous condition. Plaintiff’s witnesses testified that in 1879, at the termination of this lease, the building was in such a condition that they were afraid it would be condemned if brought to the notice of the inspector of buildings. There is nothing in the case to show that this dangerous condition of the east wall had been produced since the commencement of Freeborn’s tenancy, except the statements of the plaintiff above alluded to. In my judgment, the weight of evidence on this point is almost as clearly against plaintiff’s contention as on the other, in regard to the floors and beams. The judgment should be reversed, and a new trial ordered, with costs to abide the event. *
Allen and Bookstaver, JJ., concur.