FRANCIS J. TUOMEY, Plaintiff, v. JACOB DUNN, Defendant.
I. LANDLORD AND TENANT.
I. Tenant holding over after expiration of term.
(a.) Effect of. The law implies an agreement to hold for another year on the terms of the prior lease.
I. REPELLING IMPLICATION. — ACT OF GOD.— SICKNESS.
1. Prior to May 1, 1875, defendant was in possession under a lease, the term whereof expired May 1, 1875, and the rent reserved thereby being payable quarterly on the usual quarter days. After May 1, 1875, de*292fendant held over and continued in possession until May 11, 1875, when he moved out, This action was brought to recover a quarter’s rent, falling due August 1, 1875, at the rate reserved by the lease which expired May 1, 1875. The defense was that defendant was prevented from yielding up possession before May 11, by the act of God, in afflicting a cousin of defendant’s wife, who was a member of his family, with a malady which confined her to her bed, and which was so great that it would have endangered her life to have taken her from the house. On the trial, after the evidence on both sides had been closed, the court directed a verdict for plaintiff. At general term this direction was sustained, on the ground that the evidence failed to establish the facts constituting the defense pleaded, the court saying: ‘‘ this placing the decision on the evidence is not meant to imply that, if there were danger to her life or health in moving her, the defendant would not have been liable.”
Before Sedgwick and Sanford, JJ.
Decided May 8, 1877.
Exceptions ordered to be heard in first instance at general term.
The action was for rent of a dwelling-iionse, for the quarter beginning May 1, 1875. The defendant had been tenant for the previous year, and had held over and remained in possession until May 11, 1875, when he moved with his goods and family from the house.
The defense was, that the defendant intended to leave at the end of the first year, but was prevented from doing so by illness of his wife’s cousin, a member of the family, which was so great that it would have endangered her life to have taken her from the house.
The court held that this was no defense, and the jury gave a verdict for plaintiff, and judgment was stayed, with an order that the exceptions be heard in the first instance at general term.
*293George A. Black, for defendant.
William H. Newman, for plaintiff.
By the Court.—Sedgwick, J.
The testimony given came short of proving that the holding over of defendant was involuntary on his part, even if that were finally to be determined by his consideration of the state of health of the lady who was sick. There was no proof that her life would have been imperiled or her illness aggravated by her leaving the house on or shortly before the first of May. The physician did not see her from April 22 until May 3. He gave some not very positive testimony that her state on May 3 was such as to make it hazardous to remove her. He did not remember whether she was confined to her bed on the 22nd day of April, and he testified that he couldn’t say, that on the first day of May she could not have been moved without hazard to her health. This, with the testimony of her relatives as to her health, would not have justified the jury in saying that this defendant had proved that she could not have been removed safely.
This placing the decision upon the evidence, is not meant to imply that if there was danger to her life or health in moving her, that the defendant would not have been liable.
The exceptions are overruled, and judgment for plaintiff is ordered to be entered on the verdict with costs.
Sanford, J., concurred.