Flitner v. Willet Press

Hascall, J.

The respondent’s building in part under lease, occupied by appellant, was damaged by fire, and the action is to recover for rentals, after repairs made to the premises. The main question, arose under a covenant and was perfectly submitted to the jury by the learned trial court; this was as to whether the damages were so extensive as to render the premises untenantable, or whether appellant waited a reasonable time for respondent to make repairs, and whether repairs were begun and completed within proper time. The jury found the facts with the plaintiff and, under the evidence, we cannot say that, as a matter of law, appellant was justified in an abandonment, as under 22 Misc. Rep. 592 and 23 Misc. Rep. 126, we might well do so were the facts different. But here it appears that what might have been held on reasonable delay, as a matter of law, still in the peculiar circumstances remained of fact because of the kind and condition of appellant’s business which was to be considered. The refusal of requests to charge upon abstract questions does not make ground for reversal.'

The judgment 'should be affirmed, with costs.

Fitzsimons, Ch. J., and Conlan, J., concur.

Judgment affirmed, with costs.