Smith v. Sonnekalb , 67 Barb. 66 ( 1873 )

By the Court, Davis, J.

As the case appeared on the trial, we think it was incumbent on the defendants to show a substantial surrender of the whole of the premises. There was a total failure to show that Osborn, who was entitled to an office in the building, for which he had paid rent in advance for six months from the 2d day of April, 1868, to the defendants, had ever surrendered to them or to the landlords, or consented that the former might surrender his term as well as their own, to the latter. Osborn’s tenancy had not expired when the repairs were completed. So far as the case shows, there was nothing to prevent him from claiming and enjoying the remainder of his term.

It was error, therefore, to rule as the learned judge did upon the question of his rights; and without passing upon the other questions in the case, we think there must be a new trial.

[First Department, General Term at New York, November, 1873.

¡New trial granted.

Ingraham and Davis, Justices.]