author: Barbour, J.

text:
    James A. Roosevelt, plaintiff and respondent, vs. Robert Abbatt, defendant and appellant. S. Weir Roosevelt, plaintiff and respondent, vs. Robert Abbatt, defendant and appellant.
    Even if a covenant can be implied in a lease of promises to be used as a “ boarding house,” that when let they are suitable for occupation as a “ boarding house,” such a covenant cannot be extended, by implication, to “ first’class,” or any particular description of boarding house not expressly designated in the lease.
    (Before Babboub, Moneh, and Gabyiit, JJ.)
    Heard March 18, 1864;
    decided April 23, 1864.

    Appeals from judgments entered upon the reports of a referee.' The actions were brought upon leases dated March 18th, 1861, made by the plaintiffs as landlords, to the defendant as tenant of two adjoining houses, Nos. 1 and 3 East 20th street, for the rent which remained unpaid up to the time of trial.
    The first defense consisted of allegations that the plaintiffs made false representations, at the time the premises were hired, in answer to an inquiry of the defendant about nuisances in the neighborhood, saying, “ that there were no nuisances or objections of any kind,” whereas there was a marble factory and two stables opposite, and another stable next door; and the second defense consists of allegations that the plaintiffs fraduluently concealed the existence of the stable and factory.
    The two cases depend upon the same facts, and were tried together, before the referee, Hamilton W. Robinson, Esq.
    On the trial it appeared in evidence that in March, 1861, the defendant being desirous of hiring premises in the city of New York, to be kept by his sister, Mrs. Coit, as a boarding house, applied to the plaintiff, James A. Roosevelt, in reference to the renting of the houses and lots Nos. 1 and 3 East Twentieth street; one of which was owned by him, and the other by his brother, S. Weir Roosevelt, for whom he acted as agent. The houses had been' occupied by the Messrs. Roosevelt as family residences for several years previous. On making his application to James A. Roosevelt, the defendant stated to him that he wished to procure suitable premises to be used as a first class boarding house, in a desirable and unexceptionable neighborhood. Before concluding any bargain, the defendant visited the premises, and went into and through such parts of the houses as he chose to examine. He noticed a stable which adjoined one of the houses, and also stables in the rear, and two other stables on the opposite side of Twentieth street, adjoining which he also saw a building covering two lots of ground, which from its exterior indicates that it was used as a marble works, or factory whére marble mantels, statuary, and other articles of marble were manufactured and sold. The front doors of this latter building were then closed, and the defendant’s attention was not then particularly directed to the character of the business which was carried on there, except that there was every external indication of its being a marblé manufactory. This factory contained a large gang saw mill, propelled by steam power, having two or three gangs of from 20 to 30 saws each, for sawing large blocks of marble for customers, as well as for use by the proprietors in the construction of articles finished in their own shop. This saw mill had been with some intermission in operation for several years previous, and when running, was ordinarily in motion through the day time, and sometimes at night, and to midnight. The gangs of saws were within the building, and nearly on the line of the street, and when not going, were concealed from view by wide doors opening outwards. The noise of the saws and machinery when the saw mill was running, was incessant, loud, and disagreeable, and rendered the front rooms of these houses, and particularly of Ho. 3, objectionable to boarders, and in summer, when it' is usual to have the windows open, it prevented persons in the parlor from being heard .when using the ordinary tones of conversation, and rendered it necessary to shut the windows in order to carry on conversation with convenience. At the time the defendant examined the premises with a view of hiring them, the gang saws were not in operation, but work on them was shortly afterwards, resumed, and has continued, with some intermission, ever since.
    The effluvia from the stable pits where the manure was kept was also at times quite offensive, and at times in summer the odor pervaded the halls and parlors of the house; while the defendant was negotiating for the leases, he stated to James A. Roosevelt, that he had intimation that there was some serious objections on account of some particular nuisance or objection in the neighborhood, and was cautioned to look into it before he signed the lease. Mr. ’Roosevelt replied in substance, “ that he knew of none, unless the marble factory opposite and the stable next door could be so considered.” The fact that this reply was made, was testified to by both the plaintiffs; and James A. Roosevelt also swears, that he then informed the defendant, that the reason he and his brother rented the houses so low, was on account of objections to the neighborhood.
    The defendant went into possession, and has since continued to occupy the premises. '
    The referee found as matters of fact, that the defendant had not maintained or proved that the plaintiff's ever made to the defendant any of the representations stated and alleged in his answer, or was guilty of the fraud with which he is therein charged. That said lease, in the pleadings mentioned, was not procured from the defendant by any untrue representation, or fraudulent concealment, as alleged in said answer, or by any other fraudulent means, but was and is a valid instrument. And he found as matter of law, that the plaintiff was entitled to recover from the defendant the sum claimed in the complaint, in each action, together with costs of suit’ and he ordered judgment accordingly,

    The defendant appealed from the judgment.

      Charles Tracy, for the appellant.
    I. It fully appears by uncontradicted evidence what kind of premises the defendant informed the plaintiff he wanted to lease, and for what purpose, and what the requisites it was necessary they should possess. The premises in question were not tenantable or fit for such purpose, and the defendant has sustained large damage in consequence.
    II. The plaintiff knew that such premises were not tenant-able or fit for such purpose, and the defendant did not know it.
    III. The sign marble mantels was deceptive, the doors were closed, the saws were not going, and there was no reasonable way of detecting or of ascertaining except by inquiry of the plaintiff that there was a marble saw-mill inside, or that the houses were subject to such a noise ; nor was there any reasonable way, other than by inquiry of the plaintiff, of ascertaining as to the heaps of manure, and the offensiveness of the underground stable-pit; and the odor pervaded the front rooms and parlors continually.
    IV. When the defendant had some intimation of some unknown objection to the houses, and had sufficient reasons for knowing that the plaintiff knew all the facts in respect to it, he did all that was required of him, by going directly to the plaintiff and making the inquiry after nuisances. The plaintiff was not justified in allaying his apprehension at this interview, (as Mr. Abbatt testifies he told him he had done,) by only mentioning the lesser matters, the “ hospital for decayed carriages,” &c. and by not mentioning the saw-mill, the noise, the stable-pit, and the odor that pervaded his parlors, &c. Nor did what occurred at the subsequent interview, when Mr. Abbatt inquired as to “ latent defects,” throw any stronger duty on Mr. Abbatt. Mr. Abbatt was still in need of further information to keep him out of difficulty, but the plaintiff was
      the very person above all others from whom he had a right to demand that information, as he had then specially done already—and he was not (as the referee is of opinion) bound to go to other persons, or to resort to other means. If Mr. Roosevelt had declined to answer any question, then the defendant would have been put on his guard. He answered, but without giving information. He said the houses are in perfect order, and when pertinently asked as to large matters, he mentioned only smaller matters, and so only as to quiet and allay further inquiry. (2 Kent’s Com. 7th ed. 618, &c. Chitty on Cont. 7th ed, 681, &c. Livingston v. Peru. Iron Co., 2 Paige, 390. Nickley v. Thomas, 22 Barb. 652. Haight v. Hayt, 19 N. Y. Rep. 464.)
    V. The premises having been rented for a specific purpose, there is an implied covenant that they were fit for such purpose ; and as the defendant has clearly proved they were not, and has proved damage in consequence thereof, the judgment should be set aside, with costs, and a new trial ordered. (La Farge v. Mansfield, 31 Barb. 345. Chitty on Cont. 7th Amer. ed. 449 to 452. Westlake v. De Graw, 25 Wend. 669.
      Allaire v. Whitney, 1 Hill, 484. S. C. 4 Denio, 534. The Mayor, &c. v. Mabie 13 N. Y. Rep. 151.)

      S. W. & R. B. Roosevelt, for the respondents.
    I. The only question involved in this case is a question of fact about which there is conflicting testimony, and which has been determined in favor of the plaintiff by the referee, whose finding is conclusive. (Monell v. Marshall, 25 How. 425. Arnoux v. Homans, id. 427.)
    II. The defendant’s testimony, as to the representations, was the statement of a conversation—a-kind of proof which the court looks upon with disfavor, and is against every principle of probability. Several witnesses testify, that if they had been informed, as he swore he was, that there was a manufactory near the premises, they would at once have recognized the marble factory as the one referred to. In June, when he calls upon Mr. Roosevelt to ask for a reduced rent, he does not claim it as a right on account of the pretended imposition, nor utter a single reproach, although the plaintiff cooly admits that he always knew the factory was objectionable—an admission hardly conceivable under the defendant’s view of the previous statements. No sane man could have said to a person who had examined the premises and its surroundings, and seen that every neighboring building but one was a stable or factory, “ that there were no objections of any kind.” James A. Roosevelt denies in every particular that he made the representations alleged, but states, on the other hand, that he expressly mentioned the objections complained of, in which he is sustained by S. Weir Roosevelt, who contradicts the defendant directly, and who overheard part of a conversation when the words “latent defects” in the lease were discussed. Moreover, the building was so manifestly a factory that no one could be mistaken about it, and so the referee states in his opinion.
    III. If the fact were otherwise, and the representations had been made, they were merely expressions of opinion, as the defendant did not rely upon them, but examined for himself;
      in which case the rule of caveat emptor applies. (Hutchinson v. Brown, Clarke, 408. Hargous v. Stone, 5 N. Y. Rep. 73. Van Allen v. Allen, 1 Hilt. 524. Schuyler v. Russ, 2 Caines, 202.)
    IY. The rule as to representations, is no stronger when applied to real than to personal property, and as to the latter, it is well settled that the party must he in a position that he can not examine the property, and must rely wholly on the representations. In this case, although the gangs were not running, the mill was being worked and open to inspection when the premises were examined. (Bronson v. Wiman, 4 Seld. 182.)
    V. The proof offered by the defendant of the nature of the houses, as compared with the rent, was properly excluded, as no warranty can be implied from the amount of rent. (Wright v. Hart, 18 Wend. 449.),
    VI. A person is only liable for the concealment of facts, when he is under some duty or obligation to state them, as where a relation of trust exists between the parties. (Gale v. Gale, 19 Barb. 249. Livingston v. Peru Iron Co., 2 Paige, 390.)

       The following opinion was delivered by the referee:
      “ These actions are brought to recover rent reserved in two leases. The defense set up is that the contract was void, by reason- of alleged fraudulent representations, or concealment of the objectionable surroundings to the premises, and claim is also made for damages, on account of the loss of boarders, who were driven from the premises, or deterred from taking board there, on account of these annoyances.
      If the defendant has established his defense, he is entitled to a judgment, by way of recoupment for his damages; but having retained possession, it does not constitute an absolute bar to a recovery. ( Whitney v. Allaire, 1 N. Y. Rep. 305.)
      So far as the means of conducting a first class boarding house on these premises was affected by the fact that they were surrounded by stables, and the marble factory on the opposite side of the street, and that annoyances were occasioned by the effluvia from the stables, or by the cartg or trucks frequenting the marble works, or by the ordinary noise of marble works, arising from the operation of cutting, sawing, dressing and polishing marble, I apprehend the defendant cannot claim he has any cause of complaint. The purposes for which these places were used, and- such material and ordinary noise and inconvenience as resulted from such use, were disclosed to him when he became aware either from information or from his own observation, of the existence of the stables and marble works in such proximity to the premises.
      His counsel scarcely contends that he can be regarded as ignorant of, or to any extent imposed upon by any want of knowledge of, these particulars, but claims that even if his attention was directed to the general sources out of which they arose, yet as the character and extent of the noise consequent upon the operation of the gang saws were well known to tlqe plaintiffs while they occupied the premises, and the annoyance occasioned to the occupants being shown to be so great as to destroy their comfort, and drive away or deter boarders, its effect upon the business contemplated by the defendant must also have been so well known to the plaintiffs, and their failure to mention it, in answer to his inquiry . as to nuisances or objections affecting ftis parrying on a first class boarding house, was a fraudulent concealment; that from the character of the response, that they “ knew of no nuisance, objection, or latent defects, unless the stable and marble works were to be so considered,” it was calculated to conceal the real state of the ease, and was intended to, and did throw him off his guard and quiet his apprehensions upon that subject; that being apprized of his solicitude to ascertain every circumstance affecting the object he had in view, the plaintiffs were boiifid to respond fully, and disclose every particular within their knowledge, which might be unfavorable to its success, and the rule caveat cmptw did not relieve ,them from the consequences of their opiission to give him full and precise information.
      The defense is founded upon a charge of false representations; and assuming that any concealment of a material fact may be available, under the proceedings, I must find, as matter of fact, that neither charge is sustained.
      The representations which the defendant testifies were made to him by James A. Roosevelt, are expressly denied by the latter, and regarding Mr. Roosevelt (as I must, in the absence of any impeachment or discredit, except such as arises from the contradictory statement of the defendant,) as equally credible, I cannot but find the charge as unsustained by proof.
      Mr. Roosevelt, in his explanation of the circumstances of the negotiation, testifies that he informed the defendant “ that the reason why he and his brother (the other plaintiff) rented the premises so low, was on account of objections to the neighborhood.” This was, in itself, such a caveat or notice to put the defendant upon inquiry, as the most scrupulous regard for fair dealing could have exacted.
      But without spch express caution, the statement (as sworn to by both plaintiffs,) made to the defendant, “ that the only objections or latent defects they knew of, consisted of the stable next door, and the marble factory opposite, “ fully acquits the plaintiffs of all responsibility for the matters of which the defendant now makes complaint against them. It fully directed his attention to the sources from which any question of the entire availability of the premises for the purposes for which he desired to hire them might arise, and ought to have put him upon his guard in respect to them.
      If, in his personal examination of the premises, he had failed to discover these stables, or the marble factory, the notice given him charged him with the duty of fully investigating and considering all the ordinary and natural results of the presence of those stables, the odors that must necessarily arise from them, and the confusion and noise that might be expected to be created in the operations of a marble factory.
      I am unable to perceive, either from the terms of that disclosure, or the manner in which it was made, any grounds for imputing to the plaintiffs any simulated fairness, or any intention to deceive the defendant.
      The alleged annoyances were not (so far as shown) injurious to the health of the occupants of the demised premises; nor were the plaintiffs in any way responsible for their existence or continuance.
      The degree to which the noise from the saw mill exceeded what might be .expected to result from the operation of an extensive marble factory, it would be very difficult to estimate; the limit of the quiet endurance of the multifarious annoyances incident to the business operations of a large city, varies with the sensitiveness or fancy of each individual, and while it is probable the business of a boarding house would be particularly affected by much slighter causes than any other, still it would be exacting much more than the law requires, to hold the plaintiffs chargeable with a consciousness of these fanciful distinctions, or with knowledge of the extent to which a class of boarders capable of enduring the neighborhood of stables, and the smells arising from them, or the noise of the ordinary operations of a marble factory, or the much greater noise arising from the ordinary rumbling of carts and vehicles in the streets, would yet take exception to the continuous grating and noise of a gang of saws operating upon blocks of marble.
      Fraud is not to be inferred, nor held established, except upon clear evidence of falsehood or intention to deceive; and having found the defendant chargeable with notice of all the ordinary and natural annoyances resulting from these premises being surrounded by stables, and having a marble factory opposite, I can perceive nothing in the testimony from which I could find that there was any thing so unusual in the particular character of these surroundings, or any other such especial difference from other places and works of that general description, so open to ordinary observation, as might be presumed to be peculiarly within the knowledge of the' plaintiffs, which, under the circumstances of this case, called upon them to make any more full or detailed disclosure.
      I am of the opinion that no fraudulent representations, concealment or artifice on the part of the plaintiffs, has been established, and that they are entitled to the judgment demanded.”

   By the Court,

Barbour, J.

In these two cases, heard together on appeal, the referee has found as .matters of fact, that the defendant has not maintained or proved that the plaintiff ever made to the defendant any of the representations stated and alleged in his answer, or was guilty of the fraud therein charged ; that said lease, in the pleadings mentioned, was not procured from the defendant by any untrue representation or fraudulent concealment, as. alleged in said answer, or any other fraudulent means, but was and is a valid instrument and upon a very careful examination of all the testimony, I am satisfied that the evidence was fully sufficient to-justify the findings of the referee in this regard.

Conceding that there is an implied covenant in the lease that the premises when let, were fit and suitable for occupation as boarding houses, such covenant cannot be so extended by implication as to cover first class, or any particular description of boarding houses not expressly designated in the lease.

The judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Robertson, Ch. J.

license: Public Domain

text:
    James C. Jewett et al. plaintiffs and appellants, vs. Christian D. Emson, defendant and respondent.
    1. In an action "by the plaintiffs to recover their commissions as shipping brokers, for negotiating a charter of the defendant’s steamer to, and by, the constitutional government of Mexico, the plaintiffs produced at the trial, a paper signed by the defendant, headed “ Memorandum of the conditions of charter of the steamship M.” which they claimed to be an'agreement finally concluded between the parties. The defendant insisted that it was only a memorandum, from which a charter-party was to be drawn, and that no charter-party was in fact executed. The judge charged the jury that if the memorandum was considered by the parties as an agreement between them, leaving no further agreement to be made or drawn, and no new provision to be incorporated in it, but was signed by them, as containing the whole of what they agreed to, it was binding, and the plaintiffs became entitled to their commission, if there was nothing more to be done than to have duplicate copies of such paper made and signed, the agreement was concluded; but if it was merely a memorandum containing conditions to be embodied in a charter-party to he after-wards drawn up and signed, and such instrument was understood between them not to be delivered, and that there was to be no binding agreement between them until such future paper was drawn up and executed, then the negotiation was not concluded, nor the commissions earned.

      Held that the law was correctly stated in this charge; and that the conducting evidence warranted the submission of the questions of fact embraced in it to the jury.
    2. Held, also, that this disposition of the case met any claim for customary commissions on the ground of the completion of the agreement; and also disposed of the question of any prior agreement by the defendant (if made) to pay five per cent commissions to the plaintiffs, if the chartering should be completed, as it left the question of the completion of the bargain in each case to the jury.
    (Before Robertson, Ch. J., Garvin and McCunn, JJ.)
    Heard February 19, 1864;
    decided April 23, 1864.
    The plaintiffs and appellants, as ship brokers, sued to recover from the defendant and respondent, the sum of $1200, for services rendered in negotiating a charter of the steamer Massachusetts, owned by the defendant, and at his request, to the provisional government of Mexico, for six months, at #4000 a month. This sum of #1200, or five per cent on the amount to be received, they claim under a special promise and agreement, and that amount they allege the respondent promised to pay. This is testified to by the two witnesses, Jewett and Saulnier; but Saulnier says Emson agreed to pay it, upon a satisfactory charter of the steamboat. Jewett, one of the plaintiffs, testified that nothing whatever was said about the customary rates of 2J per cent commission. The defendant, in his answer, .denied all the material allegations of the complaint. No charter-party was ever executed, and no other agreement signed by either of the parties, than the one offered in evidence ; which was headed “ Memorandum of the condition's of charter of the steamship Massachusetts,” dated October 1st, 1859, signed by the defendant. The negotiation was terminated by reason of the charter-party, prepared by Saulnier to be executed, being materially different from the “ Memorandum of conditions,” and containing conditions and risks not embraced in said memorandum.
    It appears from the evidence, that the plaintiffs advertised for a steamer in their firm name, by order of a Mr. Lerdo, and at his request. That this advertisement was seen by'a Mr. Kennedy, and he, knowing that the defendant had a steamer, went to Keyport and brought him up and introduced him to Mr. Saulnier, who pretended to be consul for the Mexican government. Saulnier afterw-ards, on Saturday, introduced the defendant to Mr. Lerdo, the Mexican minister. The paper or memorandum given in evidence was then produced by Saulnier, and after some additions and alterations being made, the defendant was induced to sign it, with the express agreement and understanding that it was only a memorandum, and that a charter-party should be drawn up and prepared by Mr. Saulnier in conformity with it, which was to be executed on the following Monday by the proper parties. • This memorandum, after being signed by the defendant, was taken by Mr. Saulnier, and put in his pocket, and no copy given to the defendant. . .
    The jury found a verdict for the defendant; and a motion on the part of the plaintiffs for a new trial having been denied, they appealed.

      Dan Marvin, for the plaintiffs, appellants.

      F. C. Bliss, for the defendant, respondent.
   By the Court,

Robertson, Ch. J.

A new trial was ordered in this case on the former occasion, when it was before the general term, principally on the ground that the plaintiffs were proved to be agents of the charterers and not of the defendant, the owner of the vessel in question. Evidence has been adduced in this case that they acted as brokers in bringing the owners and intended charterers together; and that in such cases, by custom in this city, the former are liable to the broker for a commission of two and one half per cent when the negotiation is closed. The plaintiffs would be fully entitled to recover such amount if they brought the parties together, and the negotiation was closed by an agreement. Winsor v. Dilloway, 4 Metc. 221. Main v. Engle, 1 E. D. Smith, 620. 1 Allen, 494.)

A written paper was produced on the present trial, signed by the defendant, dated .October 1, 1859, headed “memorandum of the conditions of charter of the steamship Massachusetts,” which had some interlineations, erasures and alterations, but which the plaintiffs claim to have been an agreement finally concluded between the parties. It contained minute details of the terms of the proposed charter, but had in it nothing to show who were the parties to the agreement. The defendant, who was examined as a witness on his own behalf, testified, among other things, that at the first interview between himself, Jewett, one of the plaintiffs, the supposed Mexican minister, (Lerdo,) and the supposed Mexican consul, (Saulnier,) on Saturday, the 1st of October, he signed such paper. • Saulnier first took it out of his pocket, partly written, before they began to talk, saying he had it for some other vessel, and then wrote more on it. When they got the matter' talked over, he wrote it down. The witness added: “ After it was all done they requested me to sign it; they just read some few particulars, and he (Saulnier) said, now, just sign that/ I told him it was no use signing until the charter was made ; well/ he says, this is only a memorandum to make a charter; if you come up Monday morning 111 have that charter all drawn according to this memorandum.’ On the Monday following, a formal charter was prepared by Saulnier and offered to the defendant to sign, which he refused in consequence of a variance between the terms of it and such memorandum.” This statement of the occurrences at such interview was contradicted by Saulnier and. Jewett in their testimony, which made such memorandum an agreement signed by the defendant in order to make it binding.

The learned judge, before whom the action was tried, charged the jury that if such memorandum “ was considered ” by the parties “as an agreement between them, leaving no further agreement to be made, no new agreement to be drawn, no new provision to be incorporated in it, but was signed by them as containing precisely what they did agree to, and the whole of what they agreed to, then it was binding, and the commission was earned. If there was nothing more to do on the following Monday than to get for the better protection of each party, duplicate copies of it, signed by them, so that each one would hold a clean copy, the agreement was concluded,” but if it “ was merely a memorandum, containing the conditions to be embodied in a charter-party, which was to be afterwards drawn up and signed, and it was understood between them that it was not a delivered instrument, and that there was to be no binding agreement between them, until such a paper was drawn up and executed, then it was not concluded, and the commissions could not be earned.” Also, that the plaintiffs would not perfect their commission “ because the Mexican government refused to go on with the contract they had executed,” or because it or its “ agent insisted on having further clauses in it, to which the defendant would not consent.” No fault can be found with the law of this charge, which is clearly and admirably stated, and the conflicting evidence warranted the submission of the questions of fact embraced in it to the jury. They have passed upon them and there is no reason to disturb their verdict upon the ground of weight of evidence.

This disposition of the case was sufficient to meet any claim of customary commissions, upon the ground of the completion of the agreement, and it equally disposes of any prior agreement by the defendants, if made, to pay five per cent commissions to the plaintiff, if the charter should be completed, by leaving the question of the completion of the bargain to the jury.

The making of such agreement was submitted to the jury on conflicting testimony. The court did not charge the jury that, if that agreement was not made, although the agreement for the charter was, the plaintiffs were not entitled to the customary commissions; but merely that if the defendant, as he testified, told Saulnier in the presence of Jewett, that he did not want to pay any commissions, but would take him to Mexico without expense, the plaintiffs were entitled to no commissions, customary or otherwise.

The judgment must be affirmed, with costs, and the order denying a new trial also.


text:
    Addison G. Jerome, plaintiff and respondent, vs. John Scudder, defendant and appellant.
    1. The existence of outstanding leases, upon premises contracted to be sold, is no reason for refusing a judgment for a specific performance, against the vendor, so far as he is able to carry out the agreement.
    2. A decree for a specific performance by a vendor should not direct the defendant to procure releases from parties over whom he has no control.
    3. The judgment in such a case should direct a reference to ascertain whether the defendant can give a good title: also the amount of any incumbrance which is a lien on'the premises, and can he discharged by the payment of money; and the deduction which should be made from the purchase money as compensation for the outstanding terms of tenants. It also should require the payment to the referee, by the plaintiff, of so much of the purchase money as may be necessary to pay off all incumbrances which can be discharged, and-to the defendant, or into court, for his benefit, of the residue thereof, after deducting the amount to be allowed for such compensation. It should also provide for the discharge, by the referee, of the incumbrances which can be so paid off, and the execution, within a reasoriahle time, by the defendant to the plaintiff, of a good and sufficient conveyance of the premises, &c. to be delivered upon the payment of the sums before mentioned.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 19, 1864;
    decided April 23, 1864.
    This action was brought to compel the defendant to convey a lot of land, twenty-five feet wide by ninety-two feet, or half the block in length, known as Ho. 98 West Twentieth street, in the city of Hew York, for the consideration of $4750.
    The complaint states that the defendant, on the 8th day of July, 1863,' was, and ever since has been, the owner in fee', of the said lot of land, with the building thereon. That, on the said 8th day of July, the plaintiff and the defendant entered into an agreement in writing for the sale by the defendant to the plaintiff, and the purchase by the plaintiff of the said house and lot. A copy of the agreement is set forth. By that agreement the defendant agreed to sell the said lot, with the building, to the plaintiff, for $4750, which the plaintiff agreed to pay to the defendant on the 25 th day of July, “ when the deed will be delivered.” The defendant, “ on receiving such payment, at the time and in the manner above mentioned, shall ” execute and deliver to the plaintiff a proper deed for the conveying to him the fee simple of the premises, free from all incumbrance. The plaintiff alleges, that on the 25th of July he was, and ever since has been, ready to accept a deed of the premises, free from incumbrace, and pay the price mentioned in the agreement; but the defendant has not conveyed, or offered to convey the premises, free from incumbrance, but the premises were, on-the 8th day of July, and still are, subject to certain mortgages, which are liens and incumbrances. That the plaintiff has offered to comply with the agreement, and to receive a conveyance of the premises, free from incumbrance, and to pay the price therefor, and has demanded of the defendant that he should comply with the terms of said agreement, and should convey the premises to the plaintiff in fee simple, free from all incumbrance, offering, on such conveyance, to pay the price, &c.; but the defendant has neglected, &c. and still neglects so to do, and continues in the occupation and possession of the premises. The plaintiff demands judgment that the. defendant be compelled specifically to perform the said" agreement, &c.
    The answer, first, denies that the plaintiff, on the 25 th of July, or at any time, was ready to receive a deed or to pay the price; or that the defendant has not offered to convey the premises free from remembrance as alleged in the complaint; or that the premises were subject to certain mortgages, except as in the answer set forth ; or that the plaintiff has offered to comply with the agreement, or demanded of the defendant that he should comply, or offered to pay the price, &c. otherwise than as admitted. Second, that on the 8th of July a mortgage, dated the 11th and recorded the 12th of December, 1855, made by John Saylor to Elizabeth Judah, for $2500, existed upon the premises, which the defendant desired should remain until the plaintiff should be ready, on the 25th of July, to pay the $4750. The defendant was ready and willing, on the 25th of July, to pay off, or cause to be paid off, the said mortgage, upon the plaintiff being ready to complete the purchase, of which mortgage the plaintiff had notice on or before the 8th of July. That there was also a mortgage, dated and recorded the 12th of December, 1855, made by the said Saylor to the defendant, for $1017.80, of which mortgage the defendant has been the sole owner and holder ever since the same was made, of which mortgage the plaintiff also had notice on or before the 8th of July. The said Saylor and wife, by deed dated the 24th of October, 1862, acknowledged the 14th of Sovember, 1862, conveyed the premises in fee to the defendant. Third. That the plaintiff, not having applied for, nor demanded a deed, nor offered to pay, nor tendered the sum of $4750, or any part thereof, on the 25th of July, the defendant executed a proper deed for conveying to the plaintiff the fee simple of the premises, free from all incumbrance, went to the place of business of the plaintiff, at 22 Exchange place, tendered the deed, offered to deliver the same, and offered to perform and fulfill the contract on his part, upon the plaintiff performing and fulfilling the contract on his part. The plaintiff was not ready to take or receive the deed, nor to pay the sum of $4750, or any part thereof, on the 25th of July, or at any other time (except as admitted.) The defendant claims that the plaintiff abandoned the contract bn the 25th of July, and admits that the defendant is willing to consider the same abandoned. The defendant admits that he received a letter frbm the plaintiff on the 14th of August, offering then to perform' the contract, and requesting a deed from the defendant, but without paying or tendering any money, which was the only offer of the plaintiff. Wherefore the defendant demands that the complaint be dismissed, &c.
    The justice, before whom the action was tried,'without a jury, found the foEowing facts, viz :

      First. That on the 8th day of July, A. D. 1863, when the agreement mentioned in the pleadings was made and entered into between the parties, the premises, mentioned and described in the said, agreement, were, and ever since have been, and still are incumbered by the mortgages, which are mentioned and set forth in the answer of the defendant, and also by the rights of certain tenants, who were, on the said 8 th day of July, 1863, and have ever since been, and still are, in possession of the premises, under and by virtue of certain lettings or leasings by the defendant, with the right to continue therein as such tenants, until the first day of May, A. d. 1864 ; and that by reason thereof the said defendant has not, since the said 8th day of July, 1863, been able to tender, nor has he tendered the proper deed, for the conveying and assuring to the plaintiff the fee simple of the said premises, free from all incumbrances.

      Second. That on and prior to the said 25th day of July, A. d. 1863, the plaintiff was, and ever since has been, and still is, ready and willing and anxious to receive such conveyance of the premises, and to pay therefor the price stipulated to be paid therefor in and by the agreement; and that both prior to the said 25th day of July, 1863, and subsequent to that date, before the commencement of this action, the plaintiff offered to pay the defendant the purchase price of the said premises, on receiving a conveyance thereof, free from all incumbrance, pursuant to the terms of said contract; and that the plaintiff was prevented' from paying for the premises, by the failure and inability of the defendant to convey the premises to him free from incumbrances.
    The judge found, as a conclusion of law, from the foregoing facts, and did thereby adjudge and determine, that the plaintiff was entitled to a decree, that the defendant be required and compelled specifically to perform the contract or agreement of sale set forth in the complaint; and that, upon the plaintiff’s performing said agreement on his part, and paying the defendant the price of said premises, as fixed in and by the said agreement, the defendant do, within ten days after the entry of the said judgment or decree, execute, acknowledge and deliver to the plaintiff a proper deed for the conveying and assuring to the plaintiff the fee simple of the premises, free from all incumbrances, which said deed should contain a general warranty and the usual full covenants ; and that the said defendant do discharge and remove all incumbrances upon the premises up to the day of the delivery of the said deed to the plaintiff ; and that the plaintiff recover against the said defendant his costs of this action.
    Judgment being entered accordingly, the defendant appealed.

      S. W. Judson, for the defendant, appellant.

      L. Birdseye, for the plaintiff, respondent.
   By the Court,

Robertson, Ch. J.

The plaintiff seeks as vendee, to enforce in this action performance by the defendant, who is vendor, of a contract for the sale of land. In such contract a day was fixed on which the defendant was bound to give a deed of the land, free from all incumbrances, with full covenants and warranty. There was nothing on the face of the contract to show that time was essential in its performance. (Benedict v. Lynch, 1 John. Ch. 374. Winne v. Reynolds, 6 Paige, 410. Cases cited in Fletcher v. Button, 4 Comst. 396, and Burwell v. Jackson, 5 Seld. 535.) If it had been, the defendant was never in a condition to perform on his part, as the premises continued from the time of sale subject to two mortgages and outstanding leases ; and therefore he could not avail himself in equity of any delay on the plaintiff’s part(Seaward v. Willock, 5 East, 202, per Ellenborough, Ch. J. Lovelock v. Franklyn, 8 Q. B. 371.) The attempt at a tender made by the defendant was unavailing, (Parker v. Parmele, 20 John. 130 ; Robb v. Montgomery, Id. 15 ; Hudson v. Swift, Id. 24, 27 ; Fuller v. Hubbard, 6 Cowen, 13, 17 ; Same v. Williams, 7 id. 53 ; Connelly v. Pierce, 7 Wend. 129 ; Winne v. Reynolds, ubi sup.;) either to put the plaintiff in default or to discharge himself.

The two mortgages in this case,- if past due, can be paid off; or if not, their depreciation of the value of the purchase is capable of being measured pecuniarily. The leases which are outstanding may be made a subject of compensation at the election of the vendee, the plaintiff. It does not appear that he knew of their existence when he bought, although the defendant did. The existence of such incumbrances is therefore no reason for refusing a specific performance of the contract by the defendant so far as he can carry it out.

But the court ought not to have adjudged that the defendant should procure releases from parties over whom he had no control, (Brown v. Haff, 5 Paige, 241 ; Mills v. Van Voorhis, 23 Barb. 125,) and the judgment at special term was therefore erroneous in that respect. The judgment should have directed a reference to ascertain whether the defendant could give a good title; also the amount of any incumbrance which is a lien on the premises and can be paid off; and the deduction which should he made from the purchase money, as compensation for the outstanding terms of tenants ; it also should have required the payment to the referee hy the plaintiff of so much of the purchase money as might be necessary to pay off all incumbrances, which could be discharged, and to the defendant or into court for his benefit of the residue thereof, after deducting the amount to be allowed for such compensation. It should also have provided for the discharge by such referee of the incumbrances which could be so paid off, and the execution within a short time by the defendant to the plaintiff of a good and sufficient conveyance of the premises in fee simple, with full covenants and warranty, to be placed in the hands of such referee to be delivered to the plaintiff, upon the payment by him of the sums before mentioned.

The judgment in this case should be so modified, without costs on the appeal to either party.

The judgment of the general term to be settled by one of the justices, on two days’ notice by either party.


author: Robertson, Ch. J. McCunn, J.

text:
    James Benkard and B. H. Hutton, plaintiffs and appellants, vs. Charles H. P. Babcock, et al. defendants and respondents.
    1. An appeal by a plaintiff, from judgment in his favor upon a verdict, is not waived by the tender of the defendant to him, and his acceptance, of the amount of such verdict and the costs included in such judgment.
    2. The acceptance of a sum tendered on account of a claim, only extinguishes it when it is all the claimant is entitled to, or is accepted as being so. The amount to which an appellant is entitled, must depend upon the ultimate result of an appeal.

      3. In an action for rent by a lessor against his lessee, damages sustained by the latter by a breach of a covenant of the former contained in the lease reserving such rent, that the sub-cellar of the demised premises should, at all times during the term, be free from the “percolation” of water through the walls or floor thereof, cannot be set off.
    4. The lessees in a lease containing such a covenant, are only entitled to compensation for actual loss arising from the expense of repairing past and preventing future evils, and deprivation of the temporary use of the building, or its permanent deterioration.
    5. Dampness of a store does not necessarily affect the value of the rent, directly, nor through the medium of actual injury to business or goods. Its effect upon the rent, in any other way, must be shown by witnesses who knew it. The jury are the proper judges of the extent of injuries to a tenant depending on fluctuating causes, when the facts are given.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 16, 1864;
    decided April 23, 1864.
    Oh March 10th, 1860, the plaintiffs leased to the defendants, who were doing business, as merchants, under the name of Babcock & Milner, the marble store, Ho. 142 Duane street, for the purpose of the dry goods business, for the term of five years from May 1st, 1860, at the yearly rent of $14,000, commencing May- I5th, 1860, payable quarterly, on the usual quarter-days. The defendants were to keep the premises in repair, so far as they became out of repair by means of the use and occupation, and the plaintiffs covenanted that the sub-cellar should at all times, during the term, be free from the percolation of any water through the walls or floor thereof, not arising from the acts or neglects of the defendants. The parties mutually covenanted that the plaintiffs should not be liable for any damages that might arise from the overflow of water from any source whatsoever, except as above mentioned. The defendants covenanted that the plaintiffs, their servant, or agent, might enter into the demised premises, or any part thereof, at all times during the term, and inspect the same, and make such repairs therein as they should deem proper. The defendants entered, and paid the rent up to May 1st, 1861. On June 3d, 1861, they notified the plaintiffs that 'water had made its appearance through the floor of the sub-cellar, in a small quantity, and that it was desirable that the plaintiffs should give prompt attention to the matter. Thenceforward, the defendants refused to pay any rent, although the plaintiffs repeatedly made repairs in the floor of the sub-cellar, which was of cement, which did keep the water out for longer or shorter periods. Several successive actions were brought, the last about December 23d, 1862, for the several quarters’ rent accruing on August 1st, 1861, down to and including November 1st, 1862. The "balance of rent due the plaintiffs at the time of the trial was $22,821.82, including interest on the several amounts. The defendants set up by way of defense to each of the actions, that by reason of the presence of water in the sub-cellar, and the wet and dampness occasioned thereby, they had been during all, or a greater part of the demised term, deprived of its use, for the purposes of the business for which they had leased the premises, and that the difference in value for the business for which they were leased, by reason of the condition of the sub-cellar, was at least $1500 per annum, and that they had sustained damage to that amount. They also set up the same defense to the subsequent actions, and an eviction, upon which no question arose on the trial; and also, that their sub-tenants had not paid the rent to them, having been forbidden so to do by the plaintiffs. By several orders of the court, all the actions were consolidated. The cause was tried by a jury, who allowed damages to the defendants for the water in the cellar, from Nov. 1st, 1861, to Nov. 1st, 1862, being for the entire period for which the plaintiffs claimed rent, at the rate of $1500 per annum, with interest; and, dedqcL ing those sums from the rent due, gave the plaintiffs a verdict for $20,501.80. The plaintiffs appealed from the judgment entered thereon and moved for a new; trial,. upon the ground that errors were committed in the admission and rejection of evidence and in the charge, and that the allowance of damages to the defendants, for water in the cellar, was excessive. Also upon the ground that the judgment did not adjudge to the plaintiffs the sum of $2320.02, part of the sum demanded in the complaint, in addition to the sum adjudged and awarded to the plaintiffs by the judgment.
    The defendants moved to dismiss the appeal upon an affidavit stating that before the appeal herein was taken, the defendants paid, and the plaintiffs received, the amount of the judgment. They insisted that, by accepting the money, the plaintiffs waived their right to appeal. And it was claimed that the general rule is, that a party, by accepting the benefits accorded to him by a judgment or order, is precluded from objecting to its validity.

      Wm. Curtis Noyes, for the appellants.

      A. F. Smith, for the respondents.
   By the Court,

Robertson, Ch. J.

It is claimed by the defendants that the plaintiffs have waived their appeal in this case by accepting from them the amount of the verdict in favor of the latter, with costs. Eumerous authorities have been cited to us on the argument to sustain that position but they will all be found to be cases where an appellant had attempted actively to enforce either the whole of a judgment order or decree in his favor, or else some part thereof, connected with and dependent upon'such other part thereof as he may have appealed from, or else where he had availed himself of some benefit or favor granted or offered to him by such judgment, order or decree, as an alternative to exercising the right of appeal. Thus, in one of the most recent of such cases (Bennett v. Van Syckel, 18 N. Y. Rep. 481,) a defendant had appealed from all parts of a judgment except such as ordered the plaintiff to execute a bond of indemnity to him against the covenants in a lease, which he was therein directed to assign to the plaintiff, and also to pay certain moneys into court, to have the right thereto contested; notwithstanding which, he sued upon such bond of indemnity when delivered to him, and proceeded to litigate his right to such moneys, and it was held, that the connection of all parts of such judgment with and mutual dependance upon each other, precluded the defendant from availing himself of such part of the judgment as was in his favor, and appealing from that which was prejudicial to him. In Vail v. Remsen, (7 Paige, 206,) the more general principle was sactioned, that proceeding upon an order appealed from by an appellant was a waiver of his appeal. In Radway v. Graham, 4 Abb. Pr. 468,) and Lewis v. Irving Fire Ins. Co., (15 id. 140, n.) acceptance of a benefit granted by an order in the shape of costs to an appellant, as a condition of a favor granted thereby to his adversary was held to be a waiver of an appeal from the part of the order granting such last favor. In Noble v. Prescott, (4 E. D. Smith, 139,) the mere renewal of a motion, according to a privilege to do so granted in an order denying such motion, was held to be a waiver of an appeal from the part of the order so denying it. The decisions in all these cases are traceable to the same principle as that laid down in Bennet v. Van Syckel, (ubi supra,) which is the injustice of enforcing or claiming that, the only right to which is derived from the adjudication of a court, and repudiating that which is made, the consideration therefor by the same adjudication, as an entirety.

The principle applied in those cases, therefore, does not conflict with that sustained in Higbie v. Westlake, (14 N Y. Rep. 281,) and Clowes v. Dickenson, (8 Cowen, 328,) which were decided in the court of last resort. That justified an appellant in receiving money voluntarily paid to him, although adjudged to be due to him by a judgment order or decree, from which he had appealed simply, to gain a decree for more. Whatever might be the result of the appeal, he could not be compelled to restore moneys so voluntarily paid. It was only available as an extinguishment of his claim, or part of it, in any subsequent litigation, and formed no basis for an order of restitution. A tender and payment of money into court admits the cause, "of action, and gives to the party to whom it is tendered an absolute right to such sum for the same reason. The payment of a sum of money on account of a claim, even after judgment, does the same thing. The existence of a judgment is immaterial, and the pendency of the appeal only has the effect of rendering it contingent and precarious. The tender of the amount stops interest on the whole claim, if the appellant never recovers any more. A party refusing a tender loses both interest and costs, if he afterwards seeks to enforce his claim by action, simply because the law discourages unnecessary litigation. After an action is begun, an appeal to correct judicial errors is a right, only regulated, but neither favored or disfavored, by the law. A right of tender, there- ■ fore, intended merely to prevent interest and costs, should not be abused to compel the opposite party either to abandon an appeal or waive all claim to interest. Both parties deal together, subject to the result of the appeal, on which, besides the question of amount, the runnipg' of interest as well as future costs are to depend, whatever muy be such result.

The plaintiffs are obliged to enter up a judgment in order to bring an appeal. That judgment becomes a debt of record, having the like incidents as other debts, including its bearing interest. It does not merge the original claim, unless the litigation ceases there by the appeal being unsuccessful. A tender and refusal is as effectual as a payment and receipt of moneys to stop interest. There is no principle by which a party is to be absolutely barred from litigating his claim for a larger sum than that paid, merely because he accepts part in order to prevent a loss of interest, if he turns out to be wrong. A tender accompanied by a demand of the acceptance of the sum in full discharge of all claims or any other condition is bad, (Wood v. Hitchcock, 20 Wend. 47,) and therefore he cannot be compelled to accept it. The actual acceptance of the sum tendered therefore only extinguishes' a claim where it is all to which the claimant is entitled. What the plaintiffs are entitled to in this case depends on the result of their appeal. I do not know that if the tender had been refused the defendants would have been bound to make it good by forthwith bringing it into court, or if they did so I apprehend the court would not make a waiver of the appeal a condition of taking it out, whatever other conditions they might impose.

The motion to dismiss the appeal should, for the reason before given, be denied with costs.

In order to determine the merits of the case before us, it will not be necessary to notice those covenants in the lease in question, for whose breach no damages were proved or claimed, or the parts of the pleadings which relate thereto, except so far as the admission of evidence, or any effect of such covenants, if any, or that for whose breach damages were recovered, or their influence on the question of those damages, may require. Such, lease contained no covenant for general repairs on the premises by either lessors or lessees. The defendants covenanted to do only such repairs as might be rendered necessary by their use and occupation of the premises, besides agreeing to surrender the premises- in a good state as reasonable use and wear would permit, damages by the elements excepted. Permission, however, was reserved therein to the plaintiffs, their servant or agent, at all times during the term, to enter into and inspect the demised premises, and “make such repairs therein as they shall deem proper.” The premises were described in such lease as a five story marble front store, and were thereby demised “ for the purpose of the dry goods business.” The defendant covenanted not to use or occupy them, or permit them to be occupied, or underlet them, for any other business, and not to assign such lease, or the term granted thereby, without the consent of the plaintiffs. The covenant for whose breach damages were deducted from the claim of the plaintiffs was not an undertaking by them to do, or forbear to do. any thing, but simply a guaranty against the occurrence of a particular event not under their control, to wit: the percolation of water through the walls or floor of the sub-cellar of such building.

What difference it might have made in the practical result of the action, or the admissibility of evidence or rule of damages, if the defendants had sought to recoup for injury sustained by them by ingress of water into the building in question, instead of setting off their damages, it is not necessary to discuss. Damages for breach of a continuing covenant of guaranty against a particular occurrence affecting lands, (Mayor &c. of N. Y. v. Mabie, 13 N. Y. Rep. 151,) or even of a covenant to do a particular act, such as repairing, (Nicholas v. Dusenbury, 2 id. 283,) may he recouped, hut in the latter case the defendant is limited to the expense of doing such act, and cannot recover special damages, (Dorwin v. Potter, 5 Denio, 306,) which are not the subject of recoupment. (Allaire Works v. Guion, 10 Barb. 55.) How far injuries, arising from the ingress of water into a building, although continuing for more than three months, could be subdivided, so as to have the damages arising therefrom during each quarter deducted from the rent therefor by way of recoupment, is at least doubtful. Claims arising out of one contract cannot be applied in reduction of those growing out of another distinct one, although contained in the same instrument or forming part of one transaction. (Seymour v. Davis, 2 Sandf. 239. Deming v. Kemp, 4 id. 147.) Whether a covenant to pay rent in quarterly payments does not or does make the payment of each year’s or quarter’s rent a separate contract, so as to enable the lessee to deduct damages for injuries during each quarter or year arising from a breach of a continuing covenant, is perhaps immaterial in this case. The claim by the defendants for injuries arising from the entrance of water into the sub-cellar in question, is made in the answer by way of set off, and a prayer is also contained therein for judgment for the excess of their damages beyond rent claimed by the plaintiffs. The claim of the plaintiffs is substantially admitted, and the rights of the defendants to damages for breach of such covenant, as well as the pleadings and evidence in relation thereto, are to be governed by the same rules as if they were plaintiffs in an action on such covenant, and I shall proceed to consider their rights in the same manner as if they stood in that position.

The language of the covenant on which damages were recovered by the defendants is somewhat peculiar; it is not that water should not percolate through the walls and floor of the sub-cellar in such question, but that such sub-cellar should be free from (such) percolation of water.” It seems, therefore, not to have intended that as many canses of action should arise as acts of percolation should occur, but rather one against the subjection of the premises to such ingress of water during the term. The answer also adopts this view by negating the freedom of such sub-cellar from such invasion, and averring that “ during all or the greater part ” of the time, water had percolated through its walls and floor, and rendered the same wet and damp, and unfit for use. It also alleges, as an injury arising from “ such wetness, dampness, and presence of water in such cellar,” deprivation of its use for the purposes for which it was let to the defendants, and also for the stowing of dry goods therein, and avers the difference in value of the premises as covenanted to be in such lease for the business for which they were let, and their value by the condition of such cellar, to be a certain sum per annum, which the defendants claim up to a certain date, and onward to the time of’ the trial, as damages. This, certainly, is not a claim for damages for each single act of percolation during each quarter, and its consequences, to be set off against the rent due at the end of that quarter ; but is a claim for general damages for injury to the defendants during all the time previous to the trial, caused by one continuous occurrence, consisting of successive acts violative of such covenant. (Shaffer v. Lee, 8 Barb. 412.)

No requests to charge were made, and no exceptions talien to the charge as made, except as to the effect of certain letters. How the jury arrived at the amount of damages allowed the defendants does not legally appear on the record. The amount would seem, by calculation, to correspond with the amount claimed in the answer, of annual damages, by reason of the occurrences complained of, if allowed during the time water came into the cellar, from June, 1861, as the date of its first appearance there, to its final exclusion by appliances introduced by the plaintiffs. But another claim for damages from a similar cause, during a prior period, was submitted to them by the learned judge before whom the cause was tried, to wit, from the time of the defendants entering into possession until the November following, but without any evidence in the case, that I have been able to find, to sustain such a claim. There was evidence to prove that such sub-cellar had been damp during the period last mentioned, and that such dampness might have arisen from moisture in the materials of which it had been recently built: there was none to prove it arose from any percolation of water in the cellar. The learned judge properly instructed the jury that the defendants could not claim for “ any injury resulting from dampness not caused by percolation of water into the sub-cellar. Any necessary natural dampness incident to the location of the sub-cellar, or its construction, and not effected at all by. water getting through the walls or floor of the sub-cellar, is a consequence which the defendants themselves must bear.”

(After analysing the testimony of all the witnesses in reference to the. dampness in the building in question, the court proceeded.)

None of. the witnesses preserve the distinction very accurately between the dampness of the air of the basement and the cellar, and moisture of the floor, walls or other solid substances. Stoves and steam apparatus seem to. have been employed, from time to time, to correct the former, and perhaps the latter. The principal, if not only subject of complaint, from May to December, I860, was dampness of the atmosphere in the basement and cellar, without the slightest evidence showing that it originated in the oozing of water through the floor or walls, and I am not prepared to consider it as a matter of judicial cognizance that dampness in a room must arise from the percolation of water through its walls or floor, particularly as all the direct evidence in the case shows it was the inevitable attendant of-a newly built cellar.

The question of due proof of injury arising from .the evil covenanted against, during the period between May and December, 1860, of course is immaterial in reference to its having been submitted as a question of fact to the jury, because there are no exceptions to the charge ; but it is important in reference to questions which were excepted to, put to witnesses as to their opinions in regard to deterioration in the value of the premises, arising from that cause, during all the time from May, 1860, to December, 1862. Thus one defendant (Babcock) was allowed to state the state of the sub-cellar, in respect to the storage of dry goods, during all that time. Another defendant (Milnor) was allowed to state what, in his judgment, the premises in question were worth less, per annum, during that time, “ in consequence of the state of that cellar ; ” such state being, as he observed it, merely “general dampness through the whole store sometimes, and great dampness in the basement.” This, certainly, was not necessarily injury arising from the entrance of water. Both those questions were clearly improper, until a proper foundation had been laid by showing that the covenant in question had been violated during all that time.

Another set of questions, of a similar character, was put to other witnesses in reference to their opinion of the effect upon the yearly value of such store of a certain degree of dampness in the sub-cellar and basement, producing mould upon books, papers and articles of furniture therein, as well as injury to dry goods-. As a necessary foundation for such questions, it should have been preliminarily shown, when such dampness existed, as well as that it was caused by the percolation of water through the floor or walls of the sub-cellar; because, even if such water entered first through the basement, that formed no cause of action under the covenant in question. Setting aside the evidence already alluded to, of dampness in the basement and cellar, prior to December, 1860, there was no evidence of any ingress of water through the floor of the sub-cellar until about the time of the notice thereof, given for the first time by the defendants to the plaintiffs, in June, 1861.

(After analysing the testimony of witnesses in reference to the existence of mould on and dampness of articles in the basement, the court proceeded.) Assuming that such mould and dampening of the covers of goods were seen by the witnesses after June, 1861, when the water percolated through the floor, there was no evidence offeréd to show that it must have originated from moisture produced by the evaporation of such water, and not from that incident to a cellar damp from other causes. It was in evidence that other causes did produce such moisture, and that it produced the mould and dampened the goods, for even Mr. Franklin saw it in September, 1860, before any water entered, and it was left to conjecture to determine that it arose' afterwards from the water which had oozed in. It is true, the coincidence in time of the presence of the water, the damp air and the mould might possibly have been thereby established, but neither the court nor jury would have a right to conjecture therefrom that they were inevitably connected with each other. Several witnesses, however, were allowed to state their opinion of the effect upon the value of the store, basement and sub-cellar of such moisture in the latter, as to cause dampness in the basement, mould on cases of goods and on furniture, books and papers, and cartons of goods, without regard to, or proof of, the origin of such moisture. Such testimony being immaterial by itself could only have an effect to produce an undue bias on the minds of the jury. The exceptions thereto were, therefore, improperly overruled.

Still more objectionable questions were put to two other witnesses, who had only made a few visits to the premises, whose varying condition they observed and described, and were asked to state how much less, in their opinion, for the dry goods business such store, basement and sub-cellar were worth yearly in consequence of such condition. That assumed, without evidence, that such condition continued at least.for a year. Those questions should have been excluded when objected to.

Two witnesses were allowed'to testify as experts after objection, as to the effect of the state of the cellar upon the value of the premises in'question, when their only stock and extent of experience consisted of having hired stores ’and being acquainted with their value. They do not appear to have been acquainted with the effect on a yearly rent of dampness in a basement or water^ in a- sub-cellar. A mere knowledge of the value of stores which never had a damp basement would not assist anyone in determining the extent of its deteriorating

effects on such value. A singular question was also allowed to be put to a medical practitioner, whether a certain state of dampness in a cellar, producing certain effects, would not be injurious to the health of an occupant of. the store to which such cellar belonged. There was no evidence in the case that the health of any of the defendants had been injured by the violation of the covenant complained of, or they had lost the services of any clerk thereby, or an opportunity of renting the store, or that the danger to an occupant’s health was one of the influences which would cause a depreciation in the value of a store in consequence of having a wet cellar. Possibly the court may have allowed the question first as a matter of discretion, on the supposition that such facts would be proved, and-their attention was not called to it so as to warn the jury against being influenced by it. Still it was a dangerous exercise of that discretion, as it had a natural tendency to influence, their minds, and, being matter of opinion only, should have had the facts which justified its admission first proved. It was at all events defective in assuming the dampness to have been proved to have originated, not in the sweating of a new cellar or other causes, but in the percolation of water.

Another objection, to which every question put to the witnesses on the trial in relation to the difference of yearly value of the premises by reason of the dampness, is, that they either assume, without proof, that such dampness affected such yearly value in the market or do not discriminate between such reduction and yearly damages, caused by the dampness, to be set off against the rent. In other words, they do not distinguish between such yearly diminution as an element or item of damage and as a standard of damages. The jury might have taken the amounts given as the sole measure of damages, throwing out of view all evidence of position, physical injury either to goods or otherwise, or have taken it as another element of damage to be added to that last referred to. No preparation was made for receiving it legally as a measure of damages, by ascertaining preliminarily whether dampness usually diminished the value of a store by fixed rates, and that the witnesses knew it. It was clearly not a separate element of damage, if, besides the probable injury to goods and loss of business embraced in it, the. defendants were to be compensated for actual injury. The answers of the witnesses show how they understood such questions ; they evidently speculated on the probable amount of injury to the business and the goods and fastened the loss on the rent, without undertaking to say that such considerations would or did influence persons about to hire stores for the dry goods business. As a general rule, opinions of witnesses as to damages sustained by one person from the conduct of another, or occurrences for which he is responsible, are inadmissible, (Fish Dodge, 4 Denio, 311 ; Morehouse v. Mathews, 2 N. Y. Rep. 514; Duff v. Lyon, 1 E. D. Smith, 536; Dunham v. Simmons, 3 Hill, 609,) although stated with the facts on which they are founded, (Cook v. Brockway, 21 Barb. 331 ; Lincoln v. Saratoga and Schenectady R. R. Co., 23 Wend. 425 ; Harger v. Edmonds, 4 Barb. 256,) even when such facts are proved by other witnesses to have attended the occurrence complained of. (Paige v. Hazard, 5 Hill, 603.) Opinions of the value of articles may be given by those familiar with the identical article or similar ones. (Clark v. Baird, 9 N. Y. Rep. 183.) But whenever the value of the subject to be estimated is uncertain and varying, the witness can only give the elements of value as facts, and leave the jury to make their own estimates. (Dunlap v. Snyder, 17 Barb. 561. Maxwell v. Palmerton, 21 Wend. 407.) Probable damage to the business or merchandize of a merchant by the effects of vapor from a cellar, during, any fixed time, could not well be measured by any proportion of the rent. It is not probable that any one would hire a store at a rent, whose low amount would compensate him for damages to his goods or injury to his business. The only way in which such defect would, probably, operate on landlords and tenants, would be, by the store commanding such tenants as would not require the use of the parts affected by dampness—or whose business did not suffer from it and who could not afford to pay the higher rent of a sound store. At all events, no evidence in this case discloses in what way such probable damage affects such yearly value. Ho question was put to a single witness as to whether the dampness of a cellar affected the yearly value of a store, measurably, to any extent capable of being stated in money value. Dampness clearly did not affect the rent directly, nor through the medium of actual injury to business or goods ; and if it did it in any other way, it must be shown to have done it in that way, and that the witnesses knew it, before they can be allowed to give their views of its extent. How the answers of the witnesses showed the consequences of putting the question in the mode adopted, of assuming that dampness did affect yearly value, and simply calling upon them to state the amount and the basis of an estimate may be seen in the testimony of one of the witnesses. He took as the basis of his estimate of the depreciation of rent, the loss of a place for samples, the annoyance of procuring another, and injury to goods, which presupposes the occupation of the store, and actual°injury irrespective of diminution in the market value. As those injuries would depend on fluctuating causes, the jury were the sole proper judges of their extent, when the facts were given.

There was also another serious objection to giving evidence of a deterioration in the market value of the stores by the dampness of the cellar, which was, that the deféndants could not- assign their interest in the premises without the consent of the plaintiffs, and it was not, therefore, a vendible commodity ; their sole value to the defendants, was their right of occupying them. The law might transfer them to another, but the parties could not.

The questions put to witnesses, therefore, as to deterioration in value of the premises, or some of them, were inadmissible on some one or more of the grounds already stated, to wit:

1, The evidence did not establish that the dampness referred to arose from the evil covenanted against.

2. The failure to establish that the witnesses whose opinion was sought, were experts in the effect of dampness in cellars upon the rents of-stores.

3. If such questions were intended -to elicit the opinions of witnesses as to the value of the probable extent of injury to the goods and business of the defendants, it was substituting the witnesses in the place of the jurors, who alone are judges of the facts.

4. If such questions were intended to elicit the opinion of witnesses as to a loss in the market value of the store, they were premature, until it was shown that dampness im cellars; depreciated such value; and if it had been shown, the defendants could not lose what, by the terms of the lease, they had no right to gain.

For which reasons, as the exceptions to such questions were well taken, it renders any consideration of other topics- almost unnecessary. The defendants, for their own sakes, would have been obliged to do something to prevent the effects of the water. They could not legally have allowed it- either to remain or re-enter, so as to produce all the harm it .could, in order to recover all the damages they could therefor from the plaintiffs. The contract is one of indemnity merely; in fact, closely, resembling that of insurance, particularly- as it is against one of the elements. "The defendants are> therefore, entitled to compensation for actual loss alone, for the expense of repairing past and preventing future evils, besides deprivation of temporary use ‘of the building or permanent deterioration of it. The acts done by the plaintiffs may net have been strictly repairs; their entry, however, was under the defendants license until May, 1862. Ho physical obstruction was ever placed in the way of their proceedings, and they completed! the work of excluding the water from the cellar. The notices, given in May and July of that year of course did not disentitlethe defendants to compensation for damages-, which were .the natural and necessary result of the percolation of water, and either not caused by their own delay i® preventing repairs or | caused by the improper delay of the plaintiffs, who. undertook to make them; hut they had no other effect. What might have been the rights of the parties, if the plaintiffs had retired ■pursuant to such notices, it is not neocessary to decide. •

The judgment, therefore, should he reversed, and a new trial granted, with costs to abide the event.

McCunn, J.

This is a case where the plaintiffs obtained a judgment for a certain amount, but for a less sum than they claimed in their complaint. With the amount so awarded them by the jury, the plaintiffs were dissatisfied and perfected an appeal from the judgment at circuit to the general term, this they had a clear right to do. After the perfecting of such appeal, on the part of the plaintiffs, the defendants tendered the amount of the judgment and costs up to the time of the tender, together with interest ■ this amount the plaintiffs saw fit to accept, without any qualification, and refusing to discontinue their appeal. A motion was made at special term to compel the plaintiffs to abandon their appeal, the defendants alleging as grounds for such a motion, that the acceptance of the amount of the judgment, with interests and costs up to the time of the tender, was a satisfaction and settlement of all difficulties between the parties, and consequently an abandonment of the appeal.

The learned judge who heard the application below, denied the motion, and the defendants thereupon appealed to this branch of the court.

There is but a single question for us to determine, and that is, did such a tender by the defendants, and the acceptance of the same by plaintiffs, without any qualification, stipulation, or consent, hinder a further prosecution of plaintiffs' appeal ?

Now for the purpose of determining this question, it is not necessary that we should enter into a discussion of the merits of the case, or as to what the rights of the parties are under ■ the lease in question; these matters have all been disposed of for the time being, by the verdict of a jury under the instructions of the court below,

We are, therefore, limited in this matter to the single question, does the acceptance of the tender under the circumstances entitle the defendants to a dismissal of the appeal ? I am clearly of opinion that it does not.

The tender of the amount of the judgment, and when the litigation is still pending, can be considered no more -than an equivalent to a payment of the amount of the judgment into court, and certainly it will not be contended for a moment, that a payment into court of the amount, would in any way bar the plaintiffs’ appeal. The only effect it could, by any possibility, have upon the proceedings, would be to affect the question of costs and interest from the time the tender to the plaintiffs was made.

It is quite true that section 385 of the Code reads that, at any time before trial or verdict the defendant can serve upon the plaintiff an offer in writing of a certain amount, &c., and if the plaintiff fail to obtain a verdict more favourable than the offer, he cannot recover costs, or interest, from that time.” On the contrary he must respond in costs and interest,

It is true the section provides for the trial or verdict, but the answer to this is, that the old rule of law of tender is in full force and effect, notwithstanding this section, and under that rule, a party could come into court and plead tender at any time before final judgment, in a court of last resort, and the only effect such a tender had was simply to affect the question of costs and interest from the time of such tender. It does not act as a discontinuance of the appeal. This being the case, the party to whom the tender was made, had the right to accept the same, and the only effect such acceptance had on his case, was the same it will have in this case, if the defendants are successful in preventing the plaintiff from recovering a greater amount of damages against him.

I hold that the defendants had a perfect right to tender the amount, and the plaintiff as clear a right to accept the same, and that such acceptance does not entitle the defendants to a dismissal of the appeal in this case. All it does is to affect the question of costs and interest, from the time of such tender; the cases cited by the defendants’ counsel do not apply in this case.