Schlesinger v. Spingler-Van Beuren Estates, Inc. , 263 A.D. 956 ( 1942 )

Appeal from an order granting respondent’s motion to set aside verdicts in favor of plaintiffs, granting respondent’s motion to dismiss the complaint, made at the end of the entire case, and directing the entry of judgment in favor of respondent. Order modified on the law and the facts by striking out the words following the word “ granted ” in the first ordering paragraph and substituting therefor the following: “ and a new trial ordered,” and by striking out the second and third ordering paragraphs. As so modified, the order is unanimously affirmed, with costs to appellants to abide the event. The determination that the lease between respondent and defendant United Eastern Flour Distributing Corporation was canceled and that respondent took control of the premises and made a lease of the ground floor thereof alone with Pearl Cafeteria, Inc., and that respondent took control over that part of the premises on which plaintiff wife was injured is against the weight of the evidence. As there will be a new trial, it should be noted that the alleged cancellation of the lease between respondent and defendant United Eastern Flour Distributing Corporation was an issue of the case, and secondary evidence of the contents of the notice of cancellation may not be given until its absence is satisfactorily explained. (4 Wigmore on Evidence [3d ed.], p. 476; Richardson on Evidence [5th ed.], § 210.) Present — Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ.