Daiker v. Hutchinson 103 N.Y.S. 1121

PER CURIAM.

Upon a prior appeal in this action a judgment in favor of the defendant was reversed, upon the ground that the facts did not warrant a finding that the plaintiff had accepted a surrender of the apartment rented by the defendant before the expiration of the lease, and that therefore the requirement that written notice of an intention to terminate the lease must be given two months before its expiration, otherwise the lease should continue for one year upon the same terms, had not been complied with. 98 N. Y. Supp. 616. Upon the present trial the *1122minutes of the former trial were read in evidence, and some additional testimony in favor of the defendant was given by an elevator boy upon the question of surrender by the defendant and acceptance by the landlord. Even if we should hold that this testimony was of sufficient scope to obviate the objections to the holding of the trial court on the first trial to the effect that the oral notice and the correspondence constituted a waiver of the 60 days’ written notice required by the lease, it having been substantially disputed by the landlord, an issue of fact was presented upon which there was a conflict of evidence, and the decision of the trial court thereon must be considered as final. Judgment affirmed, with costs.