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    FRANK JOHNSON, et al., Plaintiffs and Respondents, v. CHARLES J. OPPENHEIM, et al., DEFENDANTS AND APPELLANTS.
    H. Landlord and Tenant.
    1. Covenant for quiet enjoyment.

    Relates only to the title, not to actual possession or undisturbed enjoyment, where there is no eviction.
    3. Covenant as to use of premises.

    A covenant that the tenant shall use the premises for particular purposes only cannot be construed into an implied contract or warranty Try the lessor that the premises shall be or continue fit for those purposes.
    3. Eviction and acts of trespass by landlord.

      1. Classification of principles and authorities concerning.

      2. What does not constitute eviction.

      a. Excavating in an adjoining lot by the owner thereof, not being the lessor, the effect of which excavation is to weaken the foundation, walls, and floors of the building on the demised premises, and to cause the building "to settle, and erecting a building on the adjoining lot, the effect of which is to shut up several windows in the building on the demised premises (no question of ancient lights being involved),' will not constitute eviction.
    4. Act of 1860, Chap. 345, relieving tenants from payment OF RENT IN CERTAIN CASES.

      a. Construction of.

    The lessee must quit and surrender possession to entitle him to the benefit of the act.
    1. Surrender, what not sufficient,

      a. Although the lessee quits himself, yet if he has sublet a portion of the premises and the sub-lessee-continues in possession of that portion, the surrender 'does not satisfy the statute; and this, although there was an arrangement between the lessee" and his tenant that his tenant should quit at the same time he did, and the lessee has received no rent from, his tenant since the day when he, the lessee, quit.

      6. Surrender, waiver of, what not.

    If the surrender is insufficient, the lessee is not relieved from making an effectual surrender by reason of the lessor’s refusal to accept any surrender, and this, although the refusal is based on the ground that causes assigned for the surrender do not exist, and if they do exist it was by the fault of the lessee.
    H. Statutes, Construction of.
    1. Various principles relating to this subject referred to and commented on.
    1H. Amendment at tbiad.
    1. Rests in the sound discretion of the Court.
    2. A motion for leave to set up a new and separate defense, and to raise an entirely new issue, the granting of which .would operate as a surprise on the plaintiff, should never be granted on the trial.
    Before Freedman, Curtis and Sedgwick, JJ.

      Decided May 4, 1872.
    Appeal from judgment entered upon the verdict of a I jury and from order denying defendants’ motion for a |new trial upon the judge’s minutes.
    The action was brought to recover thirty-five hunIdred dollars, a quarter’s rent, due November 1, 1869, |of the premises, with the buildings thereon, known' as To. 475 Broadway, running through to Mercer-street, [under a léase of the premises made by the plaintiffs, ¡the owners, to the defendants, dated January 15,1869, for five years, from May 1, 1869, "at the annual rent of fourteen thousand dollars, payable quarterly.
    The lease contains the usual covenant on the part of the defendants, as lessees, to pay the rent, and a covenant on the part of the plaintiffs that the defendants, j>n paying the said rent reserved and fulfilling all the lovenants and agreements on their part, shall, during the term granted, enjoy and quietly hold said demised Premises, without let or hindrance of the plaintiffs, their successors, heirs or assigns, or any other person whatever. It also contains the following provision :
    “And the premises hereby demised are to be used in the business of importers and manufacturers of and dealers in cloaks and mantillas, and for any other purposes or business not more hazardous, as respects fire, than the business aforesaid, but for no other business, without written permission first had of the said party of the first part, &c.”
    The defendants, by their answer admitting the lease, and their entry and occupation of the premises thereunder, down to October 1, 1869, set up for defense :

      First. That on the first of October, the premises having become untenantable, without fault on their part, they surrendered possession, the principal cause of the injury to the premises having been the improvements on the adjoining property, against which the answer alleges that the plaintiffs did not provide proper or requisite precáutions.

      Second. That by the improvements on the adjoining premises, certain windows in the north gable wall oí the building leased, which were useful and important for the purposes of their business, were closed, and that they surrendered on. that account.

      Third. The defendants admit their liability for the rent down to October 1, 1869, the date of their allegec surrender, two thousand three hundred and thirty three dollars and thirty-four cents, and offer judgmen for that amount.
    The court having awarded the opening, and close t< the defendants, they gave evidence tending to shov that about June 1, 1869, Mr. William C. Rhinelander the owner of the lot adjoining on the north, tore dowi the old building standing on his lot, and proceeded t excavate the same for the purpose of erecting a net building thereon, but that by reason of the defendants refusal to give the necessary license, the building leased was not properly shored up; that as the excavation proceeded, the foundation of the north wall of the building gave way in part, and the wall itself and the lower floors of the building were consequently weakened and impaired solely in consequence of the building not being shored up ; that on August 24, a portion of the ground floor settled a foot or two, and the stairway to the second floor, the ceilings, &c., were more or less disturbed. On that day the defendants wrote to the plaintiffs that by reason of the settling down of the floor the premises had become untenantable, and that they should therefore be compelled speedily to vacate the premises, and asking with whom and where they should leave the key. The plaintiffs replied that they should decline to receive the key. The defendants continued to occupy the store, being more or less incommoded by the results of the excavation, until October 1,—and meantime the erection of the new building adjoining closed up the windows on the north gable. On September 30th, the defendants having moved out their stock of goods, &c., sent the key of the front door of the store on Broadway, by express, to the plaintiffs and wrote them by mail to that effect, stating that they had vacated the premises in consequence of the same having become untenantable. The plaintiffs refused to receive the key, and replied by mail, October 2, that they wholly refused to accept any surrender of the premises, or to accept the key, and would hold the defendants liable for all rent to accrue under the lease—and "denying that the premises had been rendered untenantable, but that if they had, it was solely occasioned by the defendants’ persistent refusal to allow the property to be shored up and protected against the adjoining excavation.
    There was no pretense of any other surrender or attempt at surrender of the premises on the part of the defendants than this of October 1st.
    Between the date of the execution of the lease and of the commencement of the term., the defendant executed to one Fischer, a manufacturer, a written lease of the entire fourth floor of the building and of a portion of the third floor for the entire period of the defendants’ term under the lease. Under this lease Fischer entered into possession in May, 1869, of the portion of the premises so leased to him,, and continued so to occupy the same and to carry on his business therein until after the expiration of the quarter for the rent of which this action is brought. When the defendants quitted their part of the building and sent the key of the store to the plaintiffs, they left him in possession of the third and fourth floors and took no proceedings whatever to remove him.. It appeared also that the key which the defendants sent- by express was only the key of the store; that the entrance to the lofts occupied by Fischer was by a separate outer door and stairway on Broadway, to which there was another and different key, and that no offer of this key was made to the plaintiffs. The defendants offered to prove that Fischer had agreed to go out when they did, and that they only received rent from him up to the time they left; but this evidence was excluded as immaterial. Upon this state of facts, the defendants having rested, the plaintiffs moved the court to direct a verdict in their favor for the whole quarter’s rent, insisting that the defendants had proved no surrender, and the court so ordered, and the defendants excepted.
    Defendants’ counsel submitted a series of requests to charge the jury, but the court refused to charge any of them, and defendants’ counsel excepted to each refusal separately.
    The jury, by direction of the court, found a verdict for the plaintiffs for three thousand nine hundred and eighty-five dollars and ten cents.
    The defendants’ counsel then moved for a new trial on the minutes of the judge, upon the legal exceptions taken in the course of the trial; on the exceptions taken to the refusal of the court to charge as requested by the defendants; on the exceptions taken to the charge of the court as delivered, and also upon the ground of insufficient evidence to warrant the direction of the court to the jury to render such a verdict, or to warrant the jury in rendering such a verdict.'
    The motion was denied by the court, and to the decision of the court in that behalf, and each and every part of it, the defendants’ counsel then and there duly excepted.
    Judgment was thereafter entered upon the verdict, and defendants appealed from the judgment and also from the order denying the motion for a new trial.

      Levy Cohen, attorney, and John Graham, of counsel for appellants, argued :
    I. The court erred in refusing to charge the jury “that if by the improvements on 477 Broadway, or the building or alterations thereon, the premises were rendered untenantable and unfit for occupancy, that was an eviction of the defendants from the premises within the meaning of the law, and that whether they remained upon them or quit them during the existence of that eviction, they were discharged from liability for rent.” The four previous requests involve the same legal principle as this one, and can be considered with it. The first and third were directed to the exclusion of the defendants from the door-way and windows in the north gable wall. The sum and substance of the five requests were, that the defendants were evicted, and that the plaintiffs were answerable for the eviction, whether they lost the benefit of the premises, in whole or in part, from the causes proved—either by their becoming untenantable and unfit for occupancy, or by being deprived of the door-way and windows in the north gable wall, or by a deprivation in any other respect. The reasoning of the court on the trial evidently was, that an eviction was only predicable of some cause originatwith the landlords. The act of April 13, 1860, cannot be mystified. It may be unreasonable, but its provisions seem to be plain. 1st, the building must be so far destroyed, or injured, as to be untenantable and unfit for occupancy; 2nd, the lessees or occupants must be without fault or neglect; 3d, the cause can be the elements, or any other cause; 4th, from the moment the state of things contemplated by the act arises, the lessees or occupants shall not be liable or bound to pay rent, the words of the statute being, “ shall not be liable or bound to pay rent to the lessors or owners thereof (the building) after such destruction or injury;” 5th, “unless otherwise expressly provided by written agreement or covenant;” and 6th, in addition to being exonerated from the liability or obligation to pay rent, “the lessees or occupants may thereupon quit and surrender possession of the leasehold premises, and of the land so leased or occupied.” The scope of this statute is this, that when the demised premises become untenantable' and unfit for occupancy, that is an eviction of the tenants, suspending the right of the landlords to rent so long as it lasts. In addition to this, the tenants may quit and surrender, thereby absolutely annulling the lease. They have this option, but are not bound to exert it. The landlords have the remedy in their own hands. They can provide to the contrary of all this, by a proper agreement or covenant. It is very easy to say in the lease that, if the building or buildings shall become untenantable and unfit for occupancy, by reason of destruction or injury by the elements or any other cause, the lessees or occupants

      shall still be liable or bound to pay rent. This is what the statute means by the words, ‘ unless otherwise expressly provided by written agreement of covenant.” It is not enough that there is a simple covenant to pay rent for the whole term. The covenant must be specific, and state that the tenants or occupants shell remain liable for the rent, notwithstanding the building or buildings shall be so far destroyed, or injured, by the elements or any other cause, as to be untenantable and unfit for occupancy.. The injustice of the act, if there be such, in reference to landlords, is not to interfere with the effect to be given to the legislative will. It may be considered unequal to have to hold that, where no blame morally attaches to a landlord, he should be stripped of his rent, and yet the tenant have the right to remain in or go out, as he sees fit, without the ability of the landlord to control him, unless, if he remains in, by making the premises again tenantable and fit for occpancy. That is not the way to look at it. The inquiry is, if the law is constitutional, what does its language mean? The terms “untenantable” and “unfit for occupancy” are relative terms. In this instance they are to be construed with reference to the business for which the premises were leased, that of ‘ Importers and Manufacturers of and Dealers in Cloaks and Mantillas” (Myers v. Burns, 35 N. Y. 269, per Hunt, J., 271, 272). In reference to the “cause” of the destruction or injury, the statute admits of the most comprehensive interpretation. It may be the elements, fire, water, a tempest, the violence of a mob, or anything else we can imagine. The following authorities are referred to in conjunction with this statute (Graves v. Berdon, 26 N. Y. 198 ; Bloomer v. Merrill, 1 Daly, 485, per Daly, J., 486; Doupe v. Genin, 1 Sweeny, 25; S. C., 45 N. Y. 119 ; Davis v. Banks, 2 Id. 184; Murray v. Waller, Mass. Com. Pl. Gen. T., Oct. 1870). The court tried the case as though the defense turned entirely upon the lease, instead of upon the aet of 1860. Under that act, the lease was a mere circumstance in the case, and all the circumstances, whether conversations,-or whatever else, preceding or occurring at the execution of the lease, were to be considered, in determining whether the defendants were entitled to the benefit of the act. Was the question of fault or neglect on the part of the defendants, to be decided by the lease ? Were they not entitled to prove that they were assured against any interference or injury from Ho. 477, as a condition of accepting the lease, and were they to be denied the benefit, of such a fact, because the lease said nothing about it, when they were planting themselves upon this act of 1860 % That act brolce down all writings, except they contained an express stipulation by the defendants, waiving the benefit of its provisions altogether.

    II. The court erred in disallowing the question to Mr. Cohen, as to whether anything was said in a con-' versation between Mr. Johnson and either of the defendants, prior to or at the execution of the lease, as to the plaintiffs accepting a surrender from the defendants, if anything was done on 477 Broadway. The witness had stated that he was present at such a conversation, when the subject of improvements on Ho. 477 was spoken of. When this evidence was first objected to by the plaintiffs’ counsel, the defendants’ counsel stated that lie offered it (in part) to show that Mr. Johnson had been guilty of fraud. The court sustaining the objection, notwithstanding, the “defendants’ counsel then moved for liberty to insert in the answer a specific defense of fraud in the procurement of the lease in question from the defendants, or for an amendment of the fourth defense in the answer, so as to include the allegation of 'fraud. The court denied this motion, although the plaintiffs' counsel did not

      pretend that he was unprepared for sueh a course, or that the granting of the motion would take him by surprise. The court acted for itself, without waiting for an. objection. Was not this amendment competent? (Code, §§ 169-171).
    III. The questions to Mr. Cohen were erroneously disallowed by the court. The object of these questions was to show that, if Mr. Fischer the (alleged) tenant of the upper part of Ho. 475 Broadway remained in possession after September 30, 1869, it was without the least shadow of right, so far as the defendants were concerned—that he had unqualifiedly agreed to leave on that day—that any lease or hiring to him had been absolutely annulled, by mutual consent, as of and from that day—that he paid no rent after that day— that he was a mere interloper after that day, liable to immediate ejection—and that-the defendants exercised no dominion whatever over, and. had no possession whatever of, the premises from or after that day. The court, thus, virtually decided that the defendants could not prove they had quitted and surrendered the premises, as of and from September 30, 1869, and. yet the plaintiffs’ counsel -'took the ground on the trial that Mr. Fischer’s remaining there after that day, and so the court held, was a prolongation or continuation of his tenancy, which, as it had been originally created by the defendants, prevented their taking the ground that there was a complete perfect surrendry. In other words, the court held that the defendants did not go out, and denied them the right to prove the fact fully, if there was the least doubt about it. Again: if the defendants were bound to pay rent, if they did not go out after the building became untenantable and unfit for occupancy—the contrary of which we assume— this proof went to the very point of discharging their obligation to pay rent. It would have shown that there was no occupancy either by themselves or through Fischer. Besides, the letter of the plaintiffs, of October 3, 1869, might be construed as not admitting a perfect surrender, although we think otherwise: In this view, the evidence was demanded.
    Evarts, Southmayd & Choate, attorneys, and Joseph H. Choate, of counsel for respondents, argued:
    I. The defendants’ attempted surrender on the first of October, was wholly ineffectual—was no surrender in law or in fact, because the continued possession of their lessee in the third and fourth stories was their possession. His title was good against the plaintiffs, and the defendants’ surrender of the key of the store, leaving him in, was a mere sham and pretense. The defendants, therefore, continued liable on their covenant to pay the rent, (a.) The true construction of the act of 1860, upon which alone the defendants based their claim of a right to surrender the premises, by reason of the condition of the premises, does not exempt the lessee or occupant from the liability or obligation to pay rent according to the covenants of his lease, unless he avails himself of the privilege thereby given him in the contingency contemplated by the statute, to make a complete and effectual surrender of the possession. It does not. give him the right to continue in the enjoyment and occupation' of the premises, and yet be free from the rent. (&.) The statute makes no apportionment or division of the building, or of the untenantableness, or of the surrender. It means that if the entire building becomes wholly untenantable, the lessee may, by surrendering the whole, be discharged from the liability for the rent. So long as he remains in possession and use of a part of the building, it is conclusive evidence as against him that it is not untenantable, and he is estopped to say, or to plead that it is so, or to say or to plead that he has surrendered the possession of the leasehold premises, (c.) It is true that the literal reading of the statute is, that if the building is destroyed or becomes untenantable, the lessees shall not be liable to pay rent afterwards, and may quit and surrender the possession; but the purpose of the statute and the nature of the grievance it was designed to remedy forbid us to construe the two clauses independent of each other, or to give the lessee the benefit of the relief from the rent except upon the condition of Ms surrendering the possession, (d.) Besides, the statute requires the tenant to show, as a condition precedent to his right to avail himself of the remedy provided by it, that the destruction or injury which the premises have sustained have been without any fault or neglect on his part. But in this case not only has he failed to show that, but it clearly appears upon his own evidence that the whole damage and injury arose from his declining to give the necessary license or permission to shore up, without wMch the adjoining proprietor making the excavation which did the mischief was neither bound nor at liberty to undertake it. (e.) The form of the plaintiff’s refusal to accept the partial surrender of the premises tendered, or his absolute refusal :to accept any surrender, is of no consequence, so long as the defendants continued after the attempt, to occucupy and enjoy by their subtenant any portion of the premises. The statute requires them not only completely to surrender, but also absolutely to quit the possession. (f.) The defendants’ offer to show that Fischer agreed to go out, and that they declined to receive rent from him after they went out themselves, were properly excluded by the court as immaterial. No agreement, understanding, or dealings between them and their subtenant, could amount to the quitting and surrender of the possession, so long as he remained actually in—and so long his possession was their possession and not the plaintiffs’.

      II. Independently of the act of 1860, no eyiction was proved, (a.) As to the defendants’ plea of the closing np of the windows overlooking the adjoining lot, which was owned by a strangér. The right of an adjoining owner so to improve and build upoh his own premises, as to shut up the windows, is unquestionable, and there is no4 covenant' against it by the plaintiffs in the case. Even had the plaintiffs themselves owned the adjoining lot, they might have built upon it in the same way and closed up the defendants’ windows, without any breach of their contract as landlords (Palmer v. Wetmore, 1 Sandf. 316; Parker v. Foote, 19 Wend. 309 ; Meyers v. Gemmel, 10, Barb. 537). (b.) The covenant for quiet enjoyment contained in the lease is only a covenant of title, meaning only that the defendants’ enjoyment shall not be disturbed or interfered with by paramount title. There is no warranty, express or implied, against trespasses or the acts of strangers. Nor, because the building was let for the purposes of the defendants’ business, or other business not more hazardous, was there any implied contract or warranty on the part of the landlord that the tenement should be or continue fit for such purpose (Howard v. Doolittle, 3 Duer, 464).
   By the Court.—Freedman, J.

The covenant for quiet enjoyment contained in the leáse means only that the tenants shall not be evicted by a paramount title. It relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is no eviction from the premises demised.

Nor is there any actual or implied contract or warranty on the part of the plaintiffs in this case, that the premises demised shall be or continue fit for the purposes of defendants’ business. . The clause contained in the lease, which requires the premises to be used in the business of importers and manufacturers of and dealers in cloaks and manillas, or for any business not more hazardous, as respects fire, than the business specifically mentioned, cannot be construed into any such implied contract or warranty (Howard v. Doolittle, 3 Duer, 464; Doupe v. Genin, 1 Sweeny, 29 ; affirmed, 45 N. Y. 119).

Myers v. Burns, 35 N. 7. 269, is not an authority for the proposition that it should be so construed. In the last mentioned case the landlord had leased the premises “asa first class hotel,” and had covenanted to keep the said hotel and premises in good necessary repair during the term, at his own proper charge and expense.”

To defeat plaintiffs’ action, therefore, defendants had either to prove an eviction, or to bring themselves within the provisions of the act of 1860, and before the verdict rendered against them pursuant to the direction of the court can be upheld, it must appear clearly that he failed to do either. The defendants had the affirmative of the issue. There being no conflict of evidence, when they rested their proofs, all presumptions and inferences which they would have had a right to ask the jury to draw in their favor from the facts proven, if the case had been submitted to the jury, are to be conceded to them.

The adjudications of this State, bearing upon the general subject of interference by landlords with tenants, may be assorted into three distinct and entirely different classes of cases, the remedy for each class being peculiar to it, viz :

I. Cases where the tenant is evicted without the willful or voluntary agency of the landlord, from the whole or some part of the demised premises; as, for example, an eviction of the tenant by title paramount of a contiguous proprietor. Here, if the eviction is from the whole premises, the tenant is not chargeable with rent; but if it be from a part of the premises, the law, in its inability to impute blame to the landlord for the act of another person, requires the rent to be apportioned, so that the tenant shall be liable to pay for such portions of the premises as he retains (Moffat v. Strong, 9 Bosw, 57; and see Mark v. Patchin, 29 How. Pr. 20).

II. Cases where the landlord commits an act or acts of trespass, which interfere, more or less, with the beneficial enjoyment of the premises, but which leave the demised premises intact, and do not deprive the tenant of any part of them, so that, though he may be injured, he is not thereby dispossessed. Here the rule is, inasmuch as the wrongful act of the landlord stops short of depriving the tenant of any portion of the premises, that such trespass is no defense against the liability for rent, and the tenant’s sole remedy therefor is an action for 'damages against the wrongdoer (Edgerton v. Paige, 20 N. Y. 283; Lounsbery v. Snyder, 31 Id. 514; Cram v. Prosser, 2 Sandf. 120; Mortimer v. Bruno, 6 Bosw. 653 ; Peck v. Hiler, 31 Barb. 117).

III. Cases where the landlord enters willfully upon and expels the tenant, actually or constructively, from a part of the demised premises. Here the rule is, that the whole rent is suspended during the term, though the tenant continue in possession of the residue (Cristopher v. Austin, 1 Kern. 217 ; Peck v. Hiler, 24 Barb. 178).

« Ho eviction, actual or constructive, within the decision of any of these cases, has been proved in the case at bar. The right of William C. Rhinelander, the owner of the lot adjoining the premises in question on the north, so to improve and build upon his own lot, as to shut up the windows in the north wall of the premises demised to the defendants, there being no question of ancient lights, cannot be disputed ; and as the lease contains no covenant against it, the closing up of said windows by Rhinelander cannot be tortured into an eviction, actual or constructive, of the defendants from the whole or any part of the demised premises. Even had the plaintiffs themselves owned Bhinelander’s lot and built on such land in such a manner as to obstruct and darken the windows in the premises demised, such act, even if it were a ground for damages, would not have operated as an eviction (Palmer v. Wetmore, 2 Sandf. 316; Parker v. Foote, 19 Wend. 309; Meyers v. Gemmel, 10 Barb. 537).

Hot having shown an eviction independently of the act of 1860, the next inquiry'is whether defendants have brought themselves within the provisions and purview of that act. How, it is true that the literal reading of the statute is that if a building, without any fault or neglect on the part of the lessee, be destroyed, or be so injured as to be untenantable and unfit for occupancy, the lessee shall not be liable to pay rent after such destruction or injury, unless otherwise expressly agreed, and may quit and surrender the possession. The defendants claim the benefit of such literal reading, and insist that the statute should be so construed as to mean that, whenever the demised premises become untenantable and unfit for occupancy, that constitutes an eviction of the lessee, suspending the right of the landlord to rent so long as it lasts ;' and that, in addition to this, the lessee may quit and surrender and thus absolutely annul the lease; that he has this option, but is not bound to exercise it. But as such literal interpretation would lead to the absurd consequence, in case of the destruction or unfitness of only a comparatively small part of the demised premises, of continuing the lessee in the enjoyment and occupation of the premises, and yet absolving him from all rent, it cannot be adopted. As laws must necessarily deal in generals, and cannot descend to particulars, and as the interpretation of them is the application of them to particular cases, and as the presumption is against an absurd intent, whenever the words, taken in their ordinary sense, would lead to such a consequence, it is the.duty and province of the court to so far restrict their meaning as to avoid such a consequence. Eomat says upon this point: “Whenever it happens that the sense of a law, how clear soever it may appear in'the words, would lead us to false consequences, and to decisions that would be unjust, if the law were indifferently applied to everything that is contained within the expression, the palpable injustice that would follow from this apparent sense, obliges us to discover by some kind of interpretation, not what the law says, but what it means, and to judge by its meaning, how far it ought to be extended, and what are the bounds that ought to be set to its sense.’ ’ The interpretation here referred to is to be guided again by certain well established rules, and one of the most prominent of these, and one which helps us most in the discovery of the true meaning of the law, is the reason of the law, or the cause which moved the legislature to enact it. This ought not to be confounded with the mind of the law; for that is nothing but the genuine meaning of it, for the finding out of which we call in the reason of it to our assistance.

Another rule is that, in case of doubt, a statute consisting of divers parts or clauses is to be judged by looking at the whole, and to be construed so as to carry out the intention of the law-making power. The whole context may be considered, in endeavoring to collect such intention, although the immediate object of the inquiry be the meaning of an isolated clause.

The reason and spirit of cases, therefore, make the law, and not the mere letter.

ISow, what was the reason for the passage of the statute in question, and the main intent of the legislature in enacting it % At the time of such passage the law was firmly settled, by a long series of adjudications in the English courts, as well as our own, that upon a lease, with a covenant to pay a stipulated annual rent, the rent is payable by the lessee to the end of his term, though the property be destroyed by fire, and that the lessee has no relief against an express covenant to pay the rent, either at law or in equity, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. This rule operated so harshly in many cases that, as is well known, the legislature interfered by the passage of the act now under consideration. The act, in the absence of a written agreement or covenant to the contrary, reverses the prior rule of law, and affords relief not only against fire, but against the elements generally, and any other cause, by which the building may be so far injured as to be untenantable and unfit for occupancy. But it makes no apportionment or division of the building, or of its destruction, untenantableness or unfitness. Consequently, so long as the lessee remains in possession and use of a part of the building, it is conclusive evidence as against him that it has not been destroyed, and that it is not untenantable or unfit for occupancy within the meaning of the act.

In order to give due weight and effect to these various considerations, which have been noticed, it must be taken to have been the true intention of the legislature to absolve the lessee, in cases contemplated •by the statute, from the payment of rent, provided he avails himself of the privilege given to quit and surrender possession of the leasehold premises arid of the land so leased or occupied. The reason and purpose of the law and the nature of the grievance it was designed to remedy forbid us, as the respondents have correctly argued, to construe the two clauses of the statute independent of each other, or to give the lessee the benefit of the relief from the rent except upon the condition of his quitting and surrendering the possession.

It remains, therefore, to be considered whether the defendants have quitted and surrendered such possession.

According to the evidence the defendants forwarded the key of the outer door to the store on the first story to the plaintiffs by express, and at the same time, September 30, 1869, advised plaintiffs of it by letter through the post office." Plaintiffs acknowledged the receipt of the letter under date of October 2, 1869, and absolutely refused to accept any surrender of the premises, or the key, upon the ground that the premises were not untenantable, and that, if they were, it was the fault of the defendants in consequence of their persistent refusal to allow the building to be protected against the consequence of the excavation on the adjoining lot. Plaintiffs also notified defendants that they, the defendants, would be held liable for all rent to accrue under the lease. If the surrender was complete in fact and sufficient in law, the reasons assigned by plaintiffs for their refusal to accept it are wholly immaterial. If incomplete and insufficient, defendants were not relieved by any of the grounds upon which plaintiffs based their refusal, or the manner of such refusal, from the necessity of" making an effectual surrender. The evidence further showed that the defendants had executed a written lease for the whole unexpired term of their own lease to one Fischer of the fourth and part of the third story of the building in question; that under this sublease, Fischer had entered into possession and was engaged in the manufacture of tassels and fringes upon said premises, and employed fifteen or twenty people in that business ; that at the time of defendants’ removal from the building, they left Fischer behind in the occupation of the parts leased to him, and that he remained in the occupation and full enjoyment of those parts for a month or two after the first day of October, 1869. It also appeared that defendants took no proceedings whatever to remove Fischer ; that the key sent by them by express was only the key of the store; that the entrance to the upper stories, occupied by Fischer, was by a separate outer door and stairway on Broadway, to which there was another and different key, and that no offer of this key was made to the plaintiffs. As Fischer’s title was good against the plaintiffs, and Ms continued occupation constituted, in judgment of law, possession by the defendants, the surrender made by the latter of the key of the store, leaving Fischer in possession, of the upper part of the building, was no surrender in law or in fact of the possession of the leasehold premises, and of the land covered by their lease within the meaning of the act of 1860. The defendants, therefore, continued liable on their covenant to pay the rent.

As a necessary corollary, defendants’ offer to prove that Fischer agreed to go out with the defendants, that pursuant to an arrangement made with him he had no longer any right to continue the occupation, and that they declined to receive rent from. Mm after their own ■ removal, were properly excluded as immaterial. ISTo agreement, understanding, or dealings between them and Fischer could amount to a quitting and surrender of the possession, so long as Fischer remained actually in, and so long as his possession was their possession and not the plaintiffs’.

The views so far expressed render it unnecessary to inquire whether or not the defendants were precluded by their refusal to allow the building to be shored up from invoking the benefit of the act of 1860.

The denial of defendants’ motion, at the trial, for leave to amend the answer by the insertion of a defense of fraud by plaintiffs in the procurement of defendants’ execution of the lease in question, was a matter not only resting in the sound discretion of the court, but perfectly proper under the circumstances. A motion for leave to set up a new and separate defense and to raise an entirely new issue, the granting of which would operate as a surprise upon the plaintiff, should never be allowed at the trial.

The judgment and order appealed from should be severally affirmed, with- costs.

Curtis and Sedgwick, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JAMES ROWE, Plaintiff and Appellant, v. SALMON S. STEVENS, Defendant and Respondent.
    I. Triad. Motion to dismiss complaint after evidence closed ON BOTH SIDES.
    1. When judgment will not be reversed under an exception to the denial of the motion,

    A. When the motion is based on a proposition qf law, and the judge charges that such proposition is the general rule, yet that there is an exception to it, and leaves it to them to determine whether the case under the evidence comes within the exception, and the defendant neither excepts to the charge, nor requires any different charge.

      1. In such case the defendant acquiesces in the law as charged, and concedes that the exception stated in the charge exists in the law.
    II. New tbial. Motion fob, on the minutes, when and fob WHAT CAUSES NOT GBANTED.
    1. When there is a conflict of evidence on the facts submitted to the jury, and no motion is made either to dismiss the complaint on the ground that the plaintiff had failed to prove a cause of action, or for a direction to the jury to find a verdict for defendant, on the ground of insufficiency of the evidence to sustain a verdict against him, a motion for a new trial on the minutes will not be granted on the ground that the verdict is without evidence or insufficiently supported by the evidence.

      3. On such a motion the question, whether the fact so submitted is, even if found in plaintiff’s favor, will warrant in law a verdict for him, cannot be raised if there are no exceptions sufficient to bring it before the court.
    HI. Policy of the law in befebence to gbanting new tbials and EEVEBSING JUDGMENTS.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 4, 1872.
    Appeal from, order setting aside verdict and granting a new trial.
    The action was brought to recover the usual broker’s commission for services rendered by plaintiff to defendant, under an employment as a broker, to find a purchaser for fifteen lots of land owned by defendant.
    The defendant denied such employment and the rendition of any services for defendant, at defendant’s request, and claimed that plaintiff was employed by other persons.than the defendant, namely, by Winters and Hunt, to bring about an exchange of some of their property for said lots, that he did effect such exchange, but that his services in that respect wer„e, rendered to such Winters and Hunt, who paid the' plaintiff the usual broker’s commission and fees therefor.
    Upon the trial before the court and a jury, evidence was introduced by both parties, and at the close of such evidence, defendant’s counsel moved to dismiss the complaint on the ground that a broker cannot take a commission from both parties. The motion was denied, and defendant excepted.
    The case was submitted to the jury, under the charge of the court, upon the questions of fact involved, and the jury rendered a verdict for plaintiff for nine hundred and fifty dollars.

      Defendant’s counsel then moved the court to set aside the verdict as contrary to the evidence. The court granted the motion, and made an order setting aside the verdict and ordering a new trial, with costs to abide the event.
    Plaintiff appeals from such order.

      C. H. Truax, attorney, and C. Shaffer, of counsel for appellant, argued:
    I. The plaintiff was entitled to recover (Pugsley v. Murray, 4 E. D. Smith, 245 ; Dunlap v. Richards, 2 Id. 181).
    II. The party nonsuited, or against whom a verdict is ordered, is upon appeal entitled to have every doubtful fact found in his favor (Colegrove v. N. Y. & N. H. R. R. Co., 29 N. Y. 494; Hart v. Erie Railway Co., Albany L. Jour. vol. 3, p. 312).
    III. The charge of Justice Spencer was not excepted to, and was very explicit in its statements of the law. The jury were instructed, that before they could find for the plaintiff, they must find that plaintiff informed both parties to the transaction, that the other party was to pay him a commission, and as there was evidence on that point the supposition is they did so find, and the finding of a jury on a question of fact is conclusive (G. & W. on New Trials, vol. 1, p. 362 ; 2 Arch. Pr. 222; Gra. Pr. 314 ; see also G. & W. on New Trials, vol. 1, p. 380).
    IV. A verdict should not be set aside, merely because the court would have come to a different conclusion from that of the jury, on the force and weight of the testimony (Mackey v. N. Y. Cent. R. R. Co., 27 Barb. 529; Gra. & W. on New Trials, vol. 3, pp. 1239-1321). And the verdict should be sustained by the court, if the evidence, by any fair construction, will warrant such a finding [G. & W., vol. 3, p. 1239; Conklin v. Thompson, 29 Barb. 218 ; Heritage n. Hall, 33 Id. 347; Best v. Starks, 24 How. Pr. 58; Sheldon v.
      H. R. R. Co., 29 Barb. 226 ; Frye v. Bennett, 9 Abb. Pr. 45; 27 Barb. 540 ; 29 Id. 491-504). “Theverdict must be so clearly against the weight of evidence as to show that the jury was improperly controlled by passion, or , prejudice, or corruption, or it must be evident that the jury have mistaken the purport of the testimony, or the court will not interfere ” (Heritage v. Hall, 33 Barb. 347 ; Coddington v. Carnley, 2 Milt. 528).
    V. In the absence of express declaration, a state of facts may exist that amount to notice, and which is notice. «
    VI. Stevens, with full knowledge of all the facts, and after the business had been closed to the satisfaction of both parties, and after he had paid Eowe thirty-four dollars, repeatedly promised Eowe to pay him the balance. A past consideration is sufficient to support the most onerous undertaking (1 Caines R. 460 ; 2 Id. 152; Doty v. Williams, 14 Johns. 378).

      Larned & Warren, attorneys, and Ira D. Warren, of counsel for respondents, argued :
    I. The verdict of the jury in this case was against the clear preponderance of evidence in this case..
    II. We think it a well settled rule of law, that a broker employed by one person to buy real estate at the lowest possible price, cannot at the same time act for another person who employs him to sell real estate at the highest possible price. One of the employers must of necessity be cheated. This was perhaps the reason one of the old English judges, in one of the earliest recorded cases on the subject of brokers, defines a broker to be “a man who, when two men would trade, steppeth in between them and robbeth both.” In this case, it appears by the evidence of Mr. Winter, of Mr. Hunt and Mr. Stevens, that neither of them knew that the plaintiff was to receive a commission from the other. If then it is true, as plaintiff claims, that he agreed with both parties for a commission, it is also true that neither of them knew of such an arrangement with the other. It is well settled that in such a case a broker cannot recover commissions from-either of the parties, although in this case the plaintiff got his commission from Winter & Hunt (Dunlap v. Richards, 2 E. D. Smith, 181; Pugsley y. Murray, 4 Id. 346; King v. Parr, Alb. Law Jour. vol. 4, p. 45; Story on Agency, § 31). It was impossible for the plaintiff to act in good faith, and for the best interest of both these parties. The evidence in this case shows that the defendant was the victim of this ambitious and comprehensive broker, who told him mortgages had three years to run, when they were actually foreclosed at the timé. A lawyer might, with the same propriety, take a retainer from both sides, and try to act for the best interest of both. He could not do it, did he possess the wisdom of Solomon, and the sagacity of Peter. The courts have therefore fixed a salutary rule that where.an agent attempts to act for both parties without the knowledge of each, as in this case-, he shall be deemed to act for neither.
   By the Court.—Freedman, J.

The learned judge presiding at the trial charged the jury in effect that although as a general rule a broker cannot act for both parties and collect a fee from each, yet there may be. circumstances under which he may rightfully be employed by both parties to do a joint service upon an agreement that he should be paid equally by them, but that this must be fully understood. He left it to the jury to find whether the case, according to the evidence, did or did not come within the exception referred to, and charged them that, before they could render a verdict for the plaintiff, they had to find from the evidence, as not only that defendant employed -plaintiff, but also that it was understood by all the parties interested— Hunt and Winters on the one side and the defendant on the other—that plaintiff was to act as a broker for both sides, and to be paid accordingly.

The defendant, who had previously and'unsuccessfully moved for a dismissal of the complaint on the sole and specific ground that a broker cannot take a commission from both parties, did not request the court to charge otherwise, and took no exception to the charge as made. Consequently, he acquiesced in it, and the charge, as delivered, must be assumed to embody the true rule of law applicable to defendant’s case upon the present appeal by plaintiff.

The only question, then, before us is, whether the court below erred in setting aside the verdict. The motion was made on the judge’s minutes. Section 264 of the Code prescribes three distinct grounds upon which the judge who tries the cause may entertain such motion, namely, 1. Upon exceptions; 2. For insufficient evidence; and, 3. For excessive damages. The defendant moved upon the sole ground that the verdict was contrary to the evidence ; and unless it was clearly so, the motion should have been denied.

Upon an examination of the proceedings had upon the trial, we find that, when plaintiff rested, no motion was made by defendant for a. dismissal of the complaint for the reason that plaintiff had failed to prove a cause of action; and that, at the close of the evidence on both sides, the defendant again omitted to move for such dismissal, or the direction of á verdict in his. favor, upon the ground of the insufficiency of the evidence to sustain a verdict against him. The defendant, therefore, by not objecting to submit the case to the jury upon the questions of fact .involved in them, conceded that there was sufficient evidence to carry the case to the jury, and he consented to a decision of these questions by that tribunal. Having taken his chance of a favorable verdict, which would have concluded the plaintiff upon the facts, and there being a clear conflict of testimony between the parties, who had appeared as witnesses on their own behalf, the defendant should not afterwards have been permitted to allege that the verdict is without evidence, or insufficiently supported by evidence, and, for that reason, against law (Barrett v. Third Av. R. R. Co., 45 N. Y. 632).

Moreover, it appears that there really was sufficient evidence to authorize the jury to find as they did, and the case, therefore, belongs to a class of cases in which the rule is that the court will not set aside the verdict merely because the court is of the opinion that it would have come to a contrary conclusion upon the same evidence.

The policy of the law is not only to do justice between the parties, but also to end the legal strife after each of them has had a reasonable opportunity for the full presentation of his side of the case. The law, therefore, prescribes certain forms according to which justice is uniformly administered, and very wisely holds that during the progress of an action certain benefits can be claimed and secured only in a certain form and at a particular stage of the proceeding, and are waived, unless so applied for. In many instances a party has. his free choice, which, however, when made, will bind him to abide by it with all its consequences. By electing one mode for the assertion and investigation of his rights, he is deemed to have waived others which are inconsistent therewith. If the practice were otherwise, litigation would be indeterminable. According to these fundamental principles, there is neither injustice nor hardship in holding a defendant who has, either carelessly or designedly, seen fit to omit making Ms motion, concluded upon the facts established by the verdict of the jury.

The order appealed from should be reversed, with costs.

Barbour, Ch. J., and Sedgwick, J., concurred.


text:
    HIRAM A. CRANE, Plaintiff and Respondent, v. HERMAN KNUBEL, Defendant and Appellant.
    Contract.—Building.
    1. What not substantial performance.

    1. Where a payment is to be made when the trimmings are all done and doors all hung, and the builder abandons the work leaving the doors on the basement and first floor unhung, and a considerable part of the trimmings undone, there is not sufficient performance to entitle him to the payment.
    3. Waiver of strict performance, what not sufficient to establish.

    A statement to the assignee of the contractor, made by the owner, at or about the time that he had served the contractor with a written notice insisting on full performance, that he had no money but expected some, and would call down and see the assignee and settle with him; a subsequent statement that he could not pay then—the work was not done, the doors were not hung; that he could not pay it then as he had not the money; he would pay it next week; he would give a check for it; that the parlor doors were not hung; and a statement at a further interview that the contract was not yet fulfilled; that the contractor had abandoned his contract and put him to extra expense; are insufficient to establish a waiver.
    Before Barbour, Ch. J., Freedman and Sedgwick, JJ.

      Decided May 4, 1873.
    Appeal from judgment entered upon the report of a referee.

      The action was brought' to recover eight hundred and twenty-one dollars and ninety-one cents, the amount of an order drawn by John Gr. Hoffman in favor of the plaintiff, and accepted by the defendant, and payable by its terms out of the fifth payment to which John Gr. Hoffman might become entitled under a certain builder’s contract made with the defendant.
    The answer alleged that said John Gr. Hoffman abandoned the contract before the fifth payment became due.
    The issues were referred, by consent of parties, to a referee to hear and determine the same, and his report is as follows:
    . 1. That on or about October , 1867, the defendant and one J. Gr. Hoffman made and entered into a certain contract in writing, wherein and whereby the said Hoffman agreed to well and sufficiently erect and finish all the carpenter work in two certain new four-story and basement brick dwelling houses, situated on the lot known as the southwest corner of Seventh-avenue and Fifty-ninth street, in the city of Hew York, agreeably to the plans and specifications made by A. Pfeund, architect, and for which, by the terms of said contract, the defendant agreed to pay him, the said Hoffman, the sum of six thousand dollars in manner following: ...

      First. When the third tier of beams are leveled up and bridged, the sum of five hundred dollars.

      Second. When the roofs are tinned and skylights on, one thousand dollars.

      Third. When the floors are laid, partitions all set, furring all done, the sum of one thousand dollars.

      Fourth. When the stairs are up, sash all in, one thousand dollars.

      Fifth. When the trimmings all done, doors all hung, one thousand dollars.

      Sixth. When the work is completed, finished and done in conformity with the plans and specifications, the sum of one thousand five hundred dollars.

      2. That the said Hoffman duly entered upon the said contract, and that" the plaintiff furnished lumber to the said Hoffman, to aid him in the performance thereof, to the value and amount of about the sum of one thousand five hundred and eighty dollars, none of which has been paid, but is still due and owing to the plaintiff from the said Hoffman.
    3. That while performing the work under said contract the said Hoffman, in payment of certain lumber which he wished to purchase of the said plaintiff to use upon said work, made and gave to the said plaintiff a certain instrument in writing in the words following, to wit: .
    “Hew York, March 5th, 1888.
    “ Mr. Herman" Ektjbel : Please pay to H. A. Crane or order, eight hundred and twenty-one Tyo- dollars (SSBlAjL), and deduct the same from the fifth payment or payments due when trimmings are all on and doors all hung, and much oblige
    “ Yours respectfully,
    “ $821xyx. J. Gf. Hoeemaw.”
    —which said instrument was duly accepted by the said defendant in writing across the face thereof in the following words: ‘ ‘ Accepted : payable when payment is due. H. Knubel.”
    4. That after the said instrument had been so accepted by the said defendant, the said Hoffman delivered the said instrument so accepted to the plaintiff in this action, and the said plaintiff, on the strength and faith thereof, furnished lumber to the said Hoffman to the full and exact amount and value of eight hundred twenty-one dollars and ninety-one cents.
    5. That the "said lumber so furnished was used by the said Hoffman on the said buildings of the said defendant, and has never been paid for except by said draft.
    6. That the said Hoffman did not complete or finish Ms said contract, but abandoned the same before the work was completed.
    7. That at the time the said Hoffman abandoned the said contract he had completed the work necessary thereunder to entitle Mm to the fifth payment, except in some slight particulars.
    8. That the said’Hoffman, before abandoning the said contract, substantially completed the work necessary to be done to entitle him to the fifth payment, and was substantially entitled to said payment.
    9. That the 'difference between the amount of said payment (one thousand dollars), and the amount of the instrument in suit (eight hundred and twenty-one dollars and ninety-one cents), would more than pay for the work necessary to be done to complete said payment.
    10. That after the abandonment of the said contract, and in the month of April, 1868, the plaintiff caused said instrument to be presented to the defendant for payment, who waived the strict performance of the contract by Hoffman, and promised and agreed to pay the amount called for by said instrument to the plaintiff.
    11. That I have calculated the interest on said instrument from May 1, 1868, to January 38, 1871 (the date hereof), and find the same to be one hundred and fifty-six dollars and eighty-one cents, which added to the amount of said instrument, makes the sum of nine hundred and seventy-eight dollars and seventy-two cents.
    Upon the above found matters of fact I find as matters of law:
    That plaintiff is entitled to judgment against defendant for the sum of nine hundred and seventy-eight dollars and seventy-two cents, with interest thereon, from the date hereof, besides the costs and disbursements of the action, and Ido order and direct judgment to be entered accordingly.
    The defendant excepted to the 3rd, 4th, 7th, 8th, 9th and 10th findings of fact, and the conclusion of law of the referee.
    Judgment was entered on the report and defendant appealed.

      Isaac L. Egbert, attorney and of counsel, and James M. Smith, of counsel for appellant, argued:
    I. The referee erred in denying the motion of defendant’s counsel for a dismissal of the complaint after plaintiff had rested his case. 1. The draft “Exhibit No. 1,” is not a biff of exchange—not being payable absolutely and at all events. It was not to become payable until the money should be due on fifth installment of contract, “Exhibit No. 2.” The plaintiff rested without proving performance of the work under the contract which would entitle Hoffman to said fifth payment. The work not being performed the order never became due (Van Wagner & Jewett, 27 Barb. 181; Galley v. Prindle, 14 Id. 186; Franklin v. Robin, 1 Johns. Ch. 157). 2. Assuming the testimony of the witnesses for the respondent to be true, that “Mr. Knubel promised to settle with Mr. Crane,” and that such promise was subsequent to the abandonment, it could not, in law, be deemed a waiver of performance by Hoffman. The contract could not be altered or performance of it waived by parol, and certainly not between the appellant and the respondent (the latter not being a party to the contract), unless the parol contract be upon sufficient consideration, and be executed (N. Y. Com. Pl. 1853; Tinker v. Gerraghty, 1 E. D. Smith, 687).
    II. The seven, eighth, and tenth findings of fact by the referee are unsupported by the law or the evidence. 1. The evidence does not show that Hoffman at “the time of his abandonment of the contract had completed the work necessary thereunder to entitle him to the fifth payment, except in some slight particulars,” or that he substantially completed said work, or was substantially entitled to said payment. Such payment was not to become due until the “trimmings were all on and doors all hung.” There is no conflict of evidence as to the fact that when Hoffman abandoned the contract there were no doors hung on the basement, first or second floor of either house. There, is no conflict of evidence as to the fact that the stairs were untrimmed, or as to the fact that there were no blinds furnished or hung by Hoffman—this being part of the trimmings. A party may retain, without compensation, the benefits of a partial performance, when the contractor, without the consent or agreement of the 1 other, of his own mere volition abandons the further performance of it. The acceptance by the defendant of the order “Exhibit Ho. 1,” placed him in no different attitude with the plaintiff than he stood towards the contractor. And the same rule which would dis-entitle the contractor to the payment, obtained in absolving defendant from liability to the plaintiff (Ct. of App. 1858; Smith v. Brady, 17 N. Y. 173; Pike v. Butler, 4 Id. 360; 12 Johns. 274, 166; 2 Mass. 147; Jennings v. Camp, 13 Johns. 94; Lantry v. Parks, 8 Cow. 63; 4 Wend. 285; 11 Id. 484; 4 Cow. 564; 10 Johns. 36; 5 Denio, 406; 4 Coms. 411; 1 E. D. Smith, 395; 2 Id. 195; 9 N. Y. 93; 26 Id. 427; 36 Id. 223; 27 Id. 379; 38 Id. 189). It is the usual practice of owners of land contracting for the erection of building thereon, to reserve the largest payments until the last, when they pay in installments, as an indemnity against loss by the abandonment or non-fulfillment of the contract by the builder, and the soundness of the theory of the cases above cited, which give to the owner the benefit of a partial performance in case of a desertion of the contract by the builder, is apparent. The owner is compelled in such a case for his own protection to take charge of the completion of the work at a sacrifice of his time, and in most cases is pecuniarily damaged by delay. These last payments are supposed usually to embrace the builder’s profits, and on no principle of equity is he entitled to such profit on a contract which he has by his own act abandoned before completion. 3. The evidence does not support the tenth finding, to wit: “That after the-abandonment of the contract, the defendant waived strict performance by Hoffman, and promised to pay the amount of ‘Exhibit Ho. 1.’ ” The contract was under seal, and performance could not be waived or altered by parol without a consideration, &c. (N. Y. Com. Pl. 1853; Tinker v. Gerraghty, 1 E. D. Smith, 687). 4. When there is no conflict of evidence, the conclusion to be drawn from these facts is a question of law, and the court will inquire into the facts notwithstanding the finding of the referee (Fellows v. Northrop, 39 N. Y. 117; Pratt v. Foote, 9 Id. 465; Farmers’ Bank v. Vail, 21 Id. 486; Valentine v. Connor, 40 Id. 253; Putnam v. Hubbell, 42 Id. 113).

      David McAdam, attorney, and of counsel for respondent, argued :
    I. If the contract between Hoffman, the drawer, and the defendant, the drawee and acceptor, was so far performed as to entitle the contractor to the fifth payment, there can be no doubt of the plaintiff’s right to recover, because such order, and its acceptance, operated as an assignment by Hoffman to the plaintiff of the fund in the defendant’s hands (Lowrey v. Stewart, 25 N. Y. 239, affirming the superior court, general term, 3 Bosw. 505; Parker v. City of Syracuse, 31 N. Y. 376 ; Wells v. Williams, 39 Barb. 567; Morton v. Taylor, 1 Hill, 583). The drawing of a bank check is not of itself an assignment of the fund, but when accepted it is (Butterworth v. Peck, 5 Bosw. 341; Chapman v. White, 6 N. Y. 412).
    II. Was the fifth payment earned ? This depended upon the fact whether the particular work required to be done by the contract, to entitle the contractor to the fifth payment, was done or not, or whether its performance was waived, and the work as done' accepted as such performance. • The fifth payment became due, according to the contract, “when the trimmings all done, doors all hung, one thousand dollars.” In the performance of a contract, substantial performance is all that is required (2 Pars. on Cont. 172, and see notes to p. 35, 4 ed.; Add. on Cont. 4 ed., p. 453; Smith v. Gugerty, 4 Barb. 621; Sinclair v. Tallmadge, 35 Barb. 602; Thomas v. Fleury, 26 N. Y. 32; and see also 28 N. Y. 444. There was a clear substantial performance under these decisions. (a.) The trimmings were all done, except fitting up some closets after the plumbers, and this work is usually done last; and this evidence stands uncontradicted, (b.) The doors were all hung, when Hoffman left the buildings, on the two upper stories, and the balance of the .doors were all in the building at the time, or were taken to the building from Hoffman’s shop, by the defendant, after Hoffman left, (c.) The doors left unhung could be hung for from twenty-five dollars to forty dollars, (e.) It must be remembered, in addition to this, that the fifth was not the last payment under the contract, nor was it the last work required to be done, to render complete performance. The finishing up of the contract, and for which a,further payment of fifteen hundred dollars was to be made, necessarily involved a general finishing up of details, and of matters generally, in all parts of the house, many of which of necessity have to be done with the finishing of the building. Under such circumstances, the law will not be so technical in regard to performanee as it would on final, completion, which is supposed to embrace full performance of everything.
    III. Upon the evidence offered, the question of performance became one of fact, and the finding of the referee upon it, in favor of the plaintiff, is conclusive to the same extent as the verdict of a jury (Sinclair v. Tallmadge, 35 Barb. 602; Murphy v. Boker, 3 Robt. 1; Williams v. Vanderbilt, 29 Barb. 491, 504; Id. 218 ; 33 Barb. 347; 2 Hilt. 528 ; 24 How. 58).
    IV. There was a clear waiver, by the defendant of strict performance of the contract. The defendant, when called upon by Crane for payment, after Hoffman had left the work, instead of repudiating the order on. the ground of non-performance of the work, so that Crane, the plaintiff, might complete it himself, and he certainly could and would have done it if required, the defendant made an unconditional promise to two witnesses to call down to Crane’s, the plaintiff, and pay the order, (a.) Defendant went to Hoffman’s shop,. after Hoffman had left the work, and, under his contract, took away all the doors for his building that had not been furnished to it by Hoffman. This is uncontradicted. (b.) As the fifth payment was not the last payment under the contract, nor was the work to be done to earn it the last work required to render complete performance, waiver of strict performance of the contract will more readily be inferred, (e.) Considering also the relations of the parties, and the fact that the contract was one not requiring the personal services of Hoffman, and that if Hoffman had left his contract partially unperformed, Crane would have the right to step in and complete it himself, in order to protect his rights as assignee under the order; any act or word, dispensing with or waiving the exercise of this right on the part of Crane, is, in law, a waiver of further performance. (ft.') It must also be remembered that the fifth payment amounted to one thousand dollars, the order but eight hundred and twenty-one dollars, and two experts were sworn, and testified that all the work required to be done under the contract, to entitle the contractor to the fifth payment, was done, except the mere hanging of the doors, which could be done for twenty-five dollars, and not to exceed forty dollars. (e.) It must also be remembered that there was a further payment of fifteen hundred dollars (over and above the fifth payment) upon the completion of the building.
    V. The provisions Of a written contract may be waived by the person for whose benefit the provision was inserted, and it is not necessary that the waiver should be in writing (Smith v. Gugerty, 4 Barb. 633; Fleming t. Gilbert, 3 Johns. 538; Mayor v. Butler, 1 Barb. 338 ; Friess v. Rider, 34 N. Y. 368, and authorities cited; Keating v. Price, 1 Johns. Cas. 33; Clark v. Dales, 30 Barb. 43; Meehan v. Williams, 36 How. 73 ; Pirrepont v. Barnard, 6 N. Y. 379; Flynn v. McKeon, 6 Duer, 303). (a.) Examples of waiter. 1st, as to bills. It was held in reference to the protest of bills, that any act calculated to put the holder off his guard, and preventing him from treating the note as he otherwise would, is in judgment of law a waiter (Sheldon v. Horton, 53 Barb. 33, and to the same effect, 43 N. Y. 93). Speaking of demand and notice, the court say: 6 6 So an indorser may waive these proceedings, and consent to be bound, although these are not taken. This is upon the obvious priuciple, that a party to a contract may renounce the benefit of any stipulation in it, designed for his own protection; such waiver •may be by express word, or it may arise by implication from the acts or consent of the indorser. It may precede the maturity of the note, or may arise upon a promise to pay the note, with knowledge of the laches afterward, and the waiter required no new consideration” (Sheldon v. Horton, 43 N. Y. 93). And a
      promise to pay after an irregular or informal notice, is in law a waiver (see 5 Johns. 248, 375 ; 16 Id. 152 ; 10 Wend. 504; Leading Cases on Bills of Exchange, 473, and notes thereto; and see 12 How. 166). (5.) Generally waiver is more commonly an implication of law, from acts or circumstances, and partakes of the nature of equitable estoppel. A party waves his rights, if in conversation he so intends, and so expresses himself as to be thus understood by the other party, in the exercise of common understanding, and is understood as waiving them (Hill, on Cont. vol. 2, p, 171); and an admission by a defendant calculated to influence the conduct of the man with whom he is dealing, and actually leading him into a line of conduct which must be prejudicial to his interest, unless the defendant be cut off from the power of retraction, constitutes an estoppel in pais (3 Hill. 215 ; Hill, and Denio Supp. 430), and in the absence of proof of the effect of the admission, on the party setting up the estoppel, it is for the jury to say, whether, on the facts, the several essential parts of the estoppel are proved (Brown v. Bowen, 30 N. Y. 541); and waiver need , not be established by positive proof, it may be inferred from circumstances (Meehan v. Williams, 36 How. 73). The statute requirement, that there shall be two sureties in a bond, is for the benefit of the creditor; and he may dispense with more than one without invalidating the bond (Ward v. Whitney, 3 Sandf. 399). In an action for the price of hot air furnaces, it appeared that plaintiff agreed to put in a cold air register face, which he failed to do ; defendant used the furnaces without the register face three months, without complaint, held a waiver of defendant’s right to insist on the work being done, as a condition precedent (Bristol v. Tracy, 21 Barb. 236). Where goods are sold for which a note is to be given at six months, if the goods be delivered, and the note not demanded until two months after the sale, the condition will be deemed to be waived (Hennequin v. Sand, 25 Wend. 640; 6 Id. 77; 2 Hill. 165; as to waiver, see also, 10 Pick. 349 ; 6 Id. 262; 19 Maine, 303, 154). Ho consideration is neóessary to give validity to a waiver (Sheldon v. Horton, 43 N. Y. 93; 14 Serg. & Rawle, 241). Parties have a perfect right, orally or by acts, to alter or to waive any of the terms of an original written agreement (Van Buskirk v. Stow, 42 Barb. 10); and where parties waive, or prevent performance of a condition precedent, the parties waiving or preventing cannot avail themselves of such non-performance to relieve themselves from their own obligation (Moses v. Bierling, 31 N. Y. 462). The doctrine of waiver has also been fully recognized in .insurance cases, as to preliminary proofs; thus, the insurer may waive in whole or in part, the preliminary proofs (43 Barb. 351; 9 How. 390), and their waiver in effect strikes the condition out of the contract. The waiver need not be express; it may be inferred from the acts of the insurers, which evidence a recognition of liability, or from their denial of obligation exclusively for other reasons (57 Barb. 518; 5 Wr. 161). If the refusal to pay the loss is put upon grounds other than the insufficiency of the notice or proofs furnished, the insurers will be held to have waived objections of that character (9 How. 390; 16 Wend. 385; 3 Comst. 122; 6 Cush. 342, 440 ; 25 Ill. 466), and so the condition that the loss is payable in sixty days, may be waived (34 Conn. 461; 14 Mo. 220; and see the insurance cases above cited, collected and.asserted,' in Fland. on Ins. 541). (e.) The question of waiver on the evidence, was one of fact, and the finding of the referee thereon is conclusive in plaintiff’s favor.
   By the Court.—Freedman, J.

It was conceded by both parties on the argunient that, if the contract between Hoffman, the drawer, and the defendant, the drawee and acceptor, has been so far performed as to entitle- Hoffman as contractor to the fifth payment, plaintiff, as payee named in the order, has an undoubted right to recover,- because such order and its acceptance operated as an assignment by Hoffman to the plaintiff of the fund in defendant’s hands. The main question, therefore, is whether the said fifth payment has been earned by the contractor according to the terms of the contract.

The principle of the common law, which always permitted men to manage their own affairs and to make their own contracts, provided they involved nothing immoral or illegal, which is fully applicable here, also requires that the understanding of the parties is to be gathered from the terms of the contract, and that their rights are to be determined by the language of the contract. Though the terms are hard, parties will be held concluded by their contract (Sherman v. Mayor, &c. of New York, 1 N. Y. 316; Pike v. Butler, 4 Id. 363). A condition precedent must be strictly performed, and if a person, by contract, engages to perform an act, performance is not excused by inevitable accident (Oakley v. Morton, 11 N. Y. 25; Norton v. Woodruff, 2 Id. 153). So, when the time for the payment of money is to happen after the performance of that which is the consideration, no right of action accrues for the money until' the consideration is performed, for a party not fulfilling his part of the contract cannot insist that it shall be performed by the other party (Grant v. Johnson, 5 N. Y. 347 ; Pike v. Butler, 4 Id. 363). In such case full performance is a condition precedent to the right of payment upon the contract. Substantial performance is not enough when the person, for whom the work was done, has neither voluntarily accepted it, nor waived a faithful performance of the contract (Pullman v. Corning, 9 N. Y. 93).. This doctrine was reaffirmed in Smith v. Brady, 17 N. Y. 187, where it was held by Comstock, J., with the concurrence of all the judges, that the rule is well settled with us, that a party may retain without compensation the benefits of a partial performance, where from the nature of the contract he must receive such benefits in advance of a full performance, and by its terms or just construction he is under no obligation to pay until the performance is complete.

The last named case has been followed as an unquestionable authoritative exposition of the law of this State upon the doctrine referred to, in Cunningham v. Jones, 20 N. Y. 486; Bonesteel v. Mayor, &c., 22 Id. 162 ; Catlin v. Tobias, 26 Id. 217 ; Walker v. Millard, 29 Id. 375; Husted v. Craig, 36 Id. 223 ; Harris v. Rathbun, 2 Keyes, 319 ; Jenkins v. Wheeler, 3 Id. 654.

In view of this repeated, indorsement it will not be deemed out of place to notice more fully the remarks of Comstock, J., in Smith v. Brady (supra), as to the rights of the parties to a building contract. He says:

“The owner of the soil is always in possession. The builder has a right to enter only for the special purpose of performing his contract. Each material as it is placed in the work becomes annexed to the soil, and thereby the property of the owner. The builder would have no right to remove the brick or stone or lumber after annexation, even if the employer should unjustifiably refuse to allow him to proceed with the work. . The owner, from the nature and necessity of the case, takes the benefit of part performance, and therefore, by merely so doing, does not necessarily waive anything contained in the contract. To impute to him a voluntary waiver of conditions precedent from the mere use and occupation of the building erected, unattended by other circumstances, is unreasonable and illogical, because he is notin a situation to elect whether he will or will not accept the benefit of an imperfect performance. To. be enabled to stand upon t,he contract, he cannot reasonably be required to tear down and destroy the edifice if he prefers it to renmin. As the erection is his by annexation to the soil, he may suffer it to stand, and there is no rule of law against his using it without prejudice to his rights. ..... The law does not adjudge that a mere silent occupation of the building by the owner amounts to a waiver, nor does it deny to him the right so to occupy and still insist upon the contract. The question of waiver of the condition precedent will always be one of intention to be arrived at from all the circumstances, including the occupancy. To conclude, there is, in a just view of the question, no hardship in requiring builders, like all other men, to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true that such contracts embrace a variety of particulars, and that slight omissions and inadvertences may sometimes very innocently occur. These should be indulgently regarded, and they will be so regarded by courts and juries. But there can be no injustice in imputing to the contractor, a knowledge of what his contract requires, nor in holding him to a substantial performance. ... If he fails to perform when the requirement is plain, and when he can perform, if he will, he has no right to call upon the courts to make a new contract for him ; nor ought he to complain if the law leaves him without remedy.”

According to the well settled law of this State, therefore, the fifth payment did not become due and payable under the contract in the case at bar, until the trimmings had been all done and the doors all hung in the manner required by the specifications, which form part of the contract. The doing of all the trimmings and hanging of all the doors were made by the voluntary act of the contracting parties a condition precedent to the payment of the money. The consideration for the payment is entire and indivisible, so that the money payable as such fifth installment is neither apportioned by the contract, nor capable of being apportioned by a court or jury. Plaintiff rested without proving performance of the work which would have entitled Hoffman to such fifth payment. t Consequently plaintiff’s order was not shown to have become due, and the referee erred in denying defendant’s motion for a dismissal of the complaint, unless the evidence clearly showed that the defendant had accepted the work actually done as a full performance, or had waived a strict performance of the contract, a question, which -1 shall notice more fully hereafter.

Again: it appears without contradiction from the evidence of the entire case, that Hoffman, the contractor, in the early part of April, 1868, ceased work, before the fifth payment became due; that on the tenth of that month the defendant by written notice insisted upon performance of the balance of the work then unfinished; that Hoffman did not return to finsh the work, and that defendant was compelled to finish it himself; that at the time of Hoffman’s abandonment of the contract, there were no doors hung on the basement and first or parlor floors- of either house, and that a considerable part of the trimmings remained undone. It is, therefore, not a case of imperfect performance or of a defect in the manner of performance, but a clear case of non-performance of the contract, and consequently the referee erred in finding, as matter of fact, a substantial performance, which entitled Hoffman to the payment of the fifth installment, and, as matter of law, that plaintiff is entitled to judgment against the defendant, and the judgment must be reversed, unless the further finding, that after the abandonment of the contract, the plaintiff caused the order to be presented to the defendant for payment, who waived the strict performance of the contract by Hoffman, and promised and agreed to pay the amount called for by said instrument to the plaintiff, is not only supported by the evidence, but sufficient in law, when considered with the other real and undisputed facts of the case, to sustain it.

The evidence upon the question of waiver consists of—

1. The testimony of Edwin Bradbrook, a witness and employee of the plaintiff, who .testified that on or about April 10, 1868, he presented the order or draft to the defendant for payment, and that defendant at that time told him that he, defendant, had no money, but that he expected some on the first or second of May, and that he would call down and see the plaintiff and settle with him; that during said conversation defendant did not say anything about Mr. Hoffman not progressing with the work;
2. The testimony of Leroy Clark, a witness called on behalf of the plaintiff, who testified as follows: “I remember calling on the defendant about April 15, 1868; I presented the ‘Exhibit Ho. 1’ to him; it was the same as it now is, with the exception of the referee’s mark; I asked him if he could pay us the amount of it, or words to that effect; he said, he could not pay it then—the work was not done, the doors were not hung, that Mr. Hoffman had disappointed him; he said he could not pay it then, as he hadn’t the money'; he would pay it the next week ; he would give Mr. Crane a check for it; he said the parlor doors were not hung; I went into the building at the time and saw the parlor doors standing in the room; I went through the houses ; he spoke of nothing but the doors being unhung and incomplete; ’ ’ and,
3. The further testimony of the witness Edwin Bradbrook to the effect that he saw the defendant • again on May 9 following, and that defendant at that interview stated that the contract was not yet fulfilled, that Hoffman had abandoned his contract and had put him, the defendant, to extra expenses.

Assuming this testimony to be true, it falls very much short of establishing a waiver within the rule laid down in Smith v. Brady, 17 N. Y. 189 (see also Catlin v. Tobias, 26 Id. 217). According to it the first interview took place on or about the date of defendant’s notice to Hoffman, wherein defendant insisted upon full performance, at a time, therefore, when defendant had a right to expect that Hoffman would come and complete his contract, and defendant’s promise then made must be deemed to have been made with reference to such expectation. The conversation with Leroy Clark took place about five days later. There is no evidence that by that time defendant had become aware that Hoffman had really abandoned his contract, and his naked promise, made under such circumstances, to send a check in the course of a week, coupled with the remark that doors were not yet hung, cannot be twisted into a waiver of performance by Hoffman. At the second interview, which occurred between the witness Bradbrook and defendant on May 9 following; the defendant distinctly fell back upon his legal rights under the contract.

This testimony is not only insufficient in itself to establish inferentially a case of waiver, but it is flatly contradicted by that of the defendant, who positively denied having made any such promise as testified to by the witnesses named, and in terms equally positive testified that he told both said witnesses that he would not pay, because the work had not been finished.

The question of waiver in this case not being a question of law but of fact and intention between the contracting parties, namely Hoffman and defendant, to be determined upon all the circumstances of the case, and the evidence being wholly insufficient to establish such fact, the referee clearly erred in finding that such waiver had taken place.

For the foregoing reasons the judgment must be reversed, the order of reference, vacated and a new trial granted, with costs to appellant to abide the event.

Barbour, Ch. J., and Sedgwick, J., concurred.