Gilbert Griffin, Resp’t, v. Max T. Porawski, App’lt.
(Supreme Court, General Term, Second Department,
Filed February 8, 1892.)
Landlord and tenant—Rent—Evidence.
In an action for rent evidence was admitted of declarations of defendant’s wife made before the conclusion of the first year that they were not going to move. It also appeared that defendant paid rent for a part óf the following year. Held that the admission of the declarations of the wife did not prejudice defendant, as a new tenancy could be inferred from the, subsequent payments of rent.
Appeal from judgment of the county court of Kings county,, affirming judgment of justice’s court in favor of plaintiff. Action, to recover rent for the months of February and March, 1891, of certain premises. Plaintiff claimed that defendant leased the-premises for one year, from May 1, 1889, and that he continued to hold over after May 1, 1890, and thereby became a tenant for-another year.
Defendant claimed that he was a tenant by the month and that he was evicted by plaintiff shutting off the water from the water closets in the house.
The rent was paid to January 1, 1891. On the trial evidence *743was admitted showing that defendant’s wife in April, 1890, in .answer to a question by plaintiff if she was going to stay another year, replied “Yes, we are not going to move unless you turn us out, for Mr. Porawski don’t like to move.” The evidence as to whether plaintiff shut off the water so as to constitute an eviction 'was conflicting.
Geo. G. Eldridge {Geo. W. Miller, of counsel), for app’lt; James J. Rogers, for resp’t.
Pratt, J.
This is a hard case; it charges the defendant for premises he did not occupy and which he undoubtedly vacated under the supposition that he had a right so to do and avoid paying any more rent, but we are unable to say there is any such error of law or fact as to justify a reversal of the judgment.
The finding of the justice upon questions of fact from conflicting testimony must stand like the verdict of a jury, and the findings seem to sustain the legal conclusions reached by the justice.
The admission of declarations made by the wife did not prejudice the defendant, as a new tenancy could be inferred from the payment of rent by the husband upon the new term.
Upon the question of eviction the evidence was conflicting, and the finding of the justice is well sustained by the proof. Judgment affirmed, without costs.
Barnard, P. J., and Dykman, J., concur.