Block v. Katz ( 1901 )

Blanchard, J.

The judgment of the trial court is clearly against the weight of' evidence. The action is brought to recover the rent 'for the month of December of premises leased to the defendant and occupied by him as a barber shop. The defense was that the premises had been rendered untenantable by reason of a fire occurring December first, and that the premises were not placed in complete repair during the entire month. The lease of the premises contained a' provision that “ in case the damages shall be so extensive as to render the building untenantable, the rent shall cease until such time as the building shall be put in complete repair.” The question at issue was, whether the building was rendered “ untenantable ” within the meaning of this provision in the lease. The defendant himself was the only witness produced on the defendant’s behalf, and he swore that no business was transacted during the entire month, because of the damage done by the fire. His testimony was that the floor was burned through in several places, and the door was broken down and had been nailed closed, and the windows in the rear broken, and that he was unahle to transact any business. On cross-examination, however, he admitted that his two employees were there every day during the month, that the fire was in the cellar and none of the contents of the shop was burned or in any manner injured. Plaintiff produced a number of witnesses who testified that they were either shaved on the premises or had seen others being shaved; that the place ■ had a sign in front to the effect that the place was open and that the fire was confined to the cellar and was of a trifling nature. On the evidence presented the place was certainly not made “untenantable.” Defendant’s testimony is entirely unsupported, although his two employees, whom he stated were on the premises every day, might have corroborated him, if his testimony, that no business could have been transacted or was transacted because of the condition of the place, was true.

The judgment must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Andrews, P. J., and O’Gorman, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.