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App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

and the plaintiff's horse, that feature of the accident was mentioned only incidentally in the plaintiff's testimony and it was not until his cross-examination that he stated distinctly that the head of the defendant's horse touched the head of his horse. Under the pleadings and the evidence the case did not necessarily turn upon the question whether there was actual contact between the horses or vehicles of the respective parties; and if the accident was caused by the negligence of the defendant in the management of his horse and vehicle, although they did not in fact collide with those of the plaintiff, I see no reason why the plaintiff should not have been allowed to recover.

The tone of the charge throughout was much more favorable to the defendant than to the plaintiff. The evidence which tended to establish the defense was emphasized by the learned judge, who even described the effect of some of such testimony upon his own mind. He instructed the jury that Mr. Richardson did not owe any duty to Mr. Brennan; that all he had to do was to keep his own horse right along in the beaten track of the highway; and that if Mr. Brennan wished to pass Mr. Richardson's carriage it was his duty to get by it safely and successfully as any prudent man might under the same circumstances. Although no exception appears to have been taken to the instruction that the defendant did not owe any duty to the plaintiff, it seems clearly to have been erroneous in view of the plaintiff's testimony that the defendant saw him as he approached. When made aware of the desire of the rear driver to pass, the driver who was ahead owed a duty to exercise reasonable care not to injure the driver overtaking him. "The movement of carriages passing on our turnpike roads in opposite directions," says GIBSON, Ch. J., in a leading Pennsylvania case, "is regulated by special enactment; but there is no positive law to regulate the passing of those who are travelling in the same direction." He shows that the purpose of the enactment as to vehicles meeting one another is to avoid collisions which might otherwise ensue from the misapprehension of each driver as to the course which the other intended to take, and points out that no such uncertainty arises in respect to carriages moving in the same direction. If there be convenient room to pass on any particular part of the road the rear APP. DIV.-VOL. XXXVIII.

59

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

driver cannot complain. "If there be not, it is doubtless the duty of the other to afford it, on request made, by yielding him an equal share of the road, if that be adequate and practicable; if not, the object must be deferred till the parties arrive at ground more favorable for its accomplishment." (Bolton v. Colder, 1 Watts, 360.) Immediately after the jury had been instructed that the defendant. owed the plaintiff no duty, they were told further that they "might find from all the evidence that Mr. Brennan might have kept behind Mr. Richardson and not attempted to pass him while driving down hill so fast." By this and other portions of the charge the learned judge intimated to the jury so clearly his idea of what they ought to do as to render it exceedingly probable that his obvious opinion on the issues of fact controlled the verdict. The case, therefore, is not one in which it can be held that erroneous instructions could not have been harmful to the appellant, for here, independently of any exceptions, it is quite plain that justice requires a new trial.

All concurred.

Judgment and order reversed, and new trial granted, costs to abide the event.

FRANCES E. BURHANS and ADELAIDE M. BLACKWELL, Respondents, v. CARRIE C. MONIER, Appellant.

Landlord and tenant — provision for re-entry should the premises become vacantthe removal by the lessee leaving sub-tenants in possession is not covered by such a provision- what action on the part of the landlord entitles the tenant to terminate the lease.

64

Where the parties to a lease contemplate that the tenant shall let furnished rooms in the demised premises, the fact that the tenant, intending, as she explains, to use the demised premises for roomers" only, personally removes therefrom, leaving her sub-tenants in possession, does not amount to a vacating of the premises within the meaning of a provision of the lease authorizing the landlord, in case the demised premises, or any part thereof, should become vacant during the term, to re-enter and relet the premises for the tenant's account and hold the latter liable for any deficiency.

The wrongful refusal of the landlord to allow the tenant, under such circumstances, to collect rent from her sub-tenants, entitles the tenant to surrender

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

possession and to terminate her liability under the lease; and the fact that after such wrongful refusal on the part of the landlord, the tenant returns, to one of the sub-tenants, rent received from him, in order that such sub-tenant may pay it to the landlord, is evidence of an abandonment of the premises compelled by the landlord's act, and not a recognition of the landlord's right to resume possession and still hold the tenant liable for a deficiency in the rent.

APPEAL by the defendant, Carrie C. Monier, from a judgment of the County Court of Dutchess county, entered in the office of the clerk of the county of Dutchess on the 1st day of October, 1898, affirming the judgment of a justice of the peace.

Isaac E. Bingham, for the appellant.

Charles F. Cossum, for the respondents.

WILLARD BARTLETT, J.:

This is an action to recover rent under a written lease whereby the plaintiffs rented to the defendant a house in the city of Poughkeepsie from May 1, 1897, to May 1, 1898, for twenty-five dollars a month payable in advance. In September, 1897, the rent for that month not having been paid, the defendant personally moved to another house in the neighborhood, leaving a number of sub-tenants in occupation of the premises in question. The plaintiffs thereupon refused to allow the defendant to collect any more rent from these sub-tenants, and proceeded to collect all such rent themselves. They have credited to the defendant the aggregate amount thus collected, and taken judgment for the difference between that amount and the rent reserved by the lease. The right to do this is asserted by virtue of a provision in the instrument to the effect that, if the premises or any part thereof should become vacant during the term, the lessors might re-enter and relet the property, applying such rents as they should receive upon such reletting to the payment of the rent due under the lease, which provision also declared that the lessee should remain liable for any deficiency. (Underhill v. Collins, 132 N. Y. 269.)

The learned county judge was of the opinion that because the defendant abandoned the premises to the plaintiffs, after they had asserted the right to collect the rents from her sub-tenants, they might rightfully re-enter as they did and hold the defendant liable for the deficiency in the rent under this clause of the lease.

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

It does not seem to us that this is the fair legal import of what the defendant did.

It is practically conceded that both parties contemplated that the tenant should let furnished rooms in the demised premises.

The privilege of reletting on account of the tenant, who should still remain liable for any deficiency in the rent, was to be exercised only in case the premises became vacant. The house was not rendered vacant within the meaning of the lease by the fact that the defendant herself went to live in another house during the term. She explains why she did this, intending to keep "roomers," as she called them, in the plaintiffs' house and use the other house for table boarders. When she moved out, however, the plaintiffs not only refused to allow her to collect the rent from her "roomers," but insisted upon collecting it themselves, thus depriving her wholly of the beneficial use of the leased property. It is true that the defendant, after the plaintiffs had thus virtually taken the house out of her hands, returned to one of these sub-tenants a sum which she had received from him as rent, in order that he might pay it over to the plaintiffs, and this act on her part was regarded in the court below as evidence of an abandonment of the premises which recognized the right of the landlord to resume possession and yet, nevertheless, hold the defendant for the rent. We look We look upon it quite differently. By declining to permit the defendant any longer to collect the rents from her sub-tenants the plaintiffs had wrongfully deprived her of her enjoyment of the demised premises; and after they had done this, she was at liberty to give up all possession or claim to possession, and certainly thus limit the plaintiffs' claim against her to the amount then actually due for rent under the lease. While, therefore, it is true that the repayment of the rent by the defendant to the sub-tenant was evidence of an abandonment of the premises on her part, it was evidence only of an abandonment which had been compelled by the landlord's acts. In this view the tenant is to be regarded as having been virtually expelled from the demised property and hence as being relieved from any obligation to pay subsequently accruing rent therefor. (Edgerton v. Page, 20 N. Y.

281, 283, 284.)

For these reasons we think that the recovery against the defendant should have been limited to the amount which was due from

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

her for rent at the time when the plaintiffs assumed to prevent her from making any further collections from her sub-tenants, and we are, therefore, constrained to reverse the judgments under review.

All concurred.

Judgments of the County Court of Dutchess county and of the justice of the peace reversed, with costs.

HARRY ISENMAN, Respondent, v. WILLIAM A. MILES & Co.,
Appellant.

Negligence-collision with a truck bearing the defendant's name — evidence of its ownership.

In an action brought against William A. Miles & Co. to recover damages for personal injuries sustained by the plaintiff in a collision on a city street with a truck, alleged to belong to the defendant and to have been controlled by its employees, two apparently disinterested witnesses testified that the truck which was concerned in the collision bore the sign: "Croton Brewery, W. A. Miles & Co., 55, 57 and 59 Chrystie street," the location of the defendant's brewery; and the defendant's secretary testified that, on the day of the accident, two men, of whose names he made a memorandum, came into the brewery and notified him of the occurrence of an accident on the street in question.

The four drivers, who the secretary testified were the only ones employed by the defendant on the day of the accident, each denied the occurrence of the accident. It appeared, however, that the defendant at the time owned from five to eight trucks, all bearing the same distinctive sign, and the evidence was conflicting upon the question whether any of the defendant's trucks were in the neighborhood of the street on which the accident occurred at the time of the accident. The defendant made no effort to procure the attendance, as witnesses, of the men who informed the defendant's secretary of the occurrence of the accident, the secretary testifying that he had mislaid the memorandum of their names.

Held, that, upon the evidence, the question of the defendant's ownership and control of the truck which injured the plaintiff was for the jury.

APPEAL by the defendant, William A. Miles & Co., from a judg ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1898, upon the verdict of a jury for $500, and also from an order entered in said clerk's office on the 29th day of June, 1898,

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