Grauel v. Soeller , 59 N.Y. Sup. Ct. 375 ( 1889 )

Barnard, P. J.

On the 19th day of January, 1887, the defendant gave a written lease to the plaintiff of premises described therein as follows: “All that certain house and lot known as the * Island View Hotel,’ for the term of five years from the 1st of April, 1887.” The hotel building is a double house, with a veranda in front, and the veranda roof is extended at the sides so as to cover a room, which is the barber-shop, at one end of the house, and at the other end to cover a room used as a billiard room. The controversy is about the barber-shop. The proof was conflicting whether the barber-shop was reserved when the lease was given. The jury have found that it was not expressly reserved, but that the landlord intended to reserve it, and the tenant supposed he got it; and that, in point of fact, the barber-shop is part of the Island View Hotel. The reception of the fact that a barber-shop was necessary to the hotel, was proper. The question was whether the plaintiff hired the barber-shop. The refusal of the court to permit the defendant to testify to her instructions given to Mr. Burtis in regard to the lease was subsequently cured by admitting the rejected testimony. She testified that she told him that the lease was to be for five years, payment in three terms, without the barber-shop. The case became, then, asimple one. There was no reservation outside of the lease. The lease included the barber-shop by its description of the property, and the defendant did not intend to give a lease of the barber-shop. There was no mutual mistake. The contract did not express the defendant’s view of its terms. This is no defense to the contract. • Jackson v. Andrews, 59 N. Y. 244. The form of the action is not objectionable. The facts are stated. The averment is that the defendant rented premises to plaintiff at a designated rent, and without plaintiff’s permission rented out a portion of it to a third party as her tenant. The answer denied the leasing of the barber-shop, and asked a reformation of the contract to make it express the agreement between the parties. There was no error in refusing to charge upon the effect of the covenant that the lessee should not under-let the premises, or any part thereof, as bearing upon the disputed question of fact whether the barber-shop was reserved or not. We think the trial judge was right, and that it had no bearing on the case. The judgment should therefore be affirmed, with costs. All concur.