Opinion
November, 1892.
Carlisle Norwood, for plaintiffs (appellants).
F.R. Minrath, for defendant (respondent).
This action was brought to recover the first installment of rent which had accrued under an alleged lease in writing as follows:
"NEW YORK, December 18, 1891.
"It is hereby agreed between Samuel Henry Corn Joseph Rosenthal that the said Samuel Henry Corn do lease unto the said Joseph Rosenthal the part of store and basement of 127 Greene street from February 1, 1892, to February 1, 1893, at the annual rental of $1,000, payable monthly in advance, except such portion of the store which is now occupied by Hockmeyer Bros., which has nothing to do with said lease.
"(Signed) SAMUEL HENRY CORN. "JOSEPH ROSENTHAL."
On the trial, the defense, that the instrument purporting to be a lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises, thereby intended to be demised, was delivered to the lessee two weeks before the commencement of the term, which was not done, was sought to be established by the testimony of the defendant lessee. This testimony was admitted, under objection and exception, respecting its competency, by plaintiff's counsel, and when the introduction of evidence was concluded it remained substantially unchallenged. Thereupon, on motion of defendant's counsel, and again under objection and exception by plaintiff's counsel, the court directed the jury to find for defendant.
We are of the opinion that the testimony objected to and admitted was competent for the purpose for which it was offered, under the ruling of the Court of Appeals in Reynolds v. Robinson, 110 N.Y. 654, but that the trial justice erred in withdrawing the case from the jury's consideration. Defendant's testimony was that of a party in interest, whose credibility should be determined by the jury, though it remained otherwise unimpeached. Neal's testimony, by which defendant sought to be corroborated, falls short of having that effect. He heard confessedly only part of what defendant said immediately after the execution and delivery of the paper, so that it does not appear from his testimony that defendant's proposition was assented to by plaintiffs. Elwood v. Western U. Tel. Co., 45 N.Y. 549; Gildersleeve v. Landon, 73 id. 609; Honegger v. Wettstein, 94 id. 252; Kavanagh v. Wilson, 70 id. 177; Canajoharie Natl. Bank v. Diefendorf, 123 id. 191, 200.
The judgment appealed from must be reversed, and a new trial ordered, with costs to abide the event.
BOOKSTAVER, J., concurs.
Judgment reversed, new trial ordered, costs to abide the event.