Nicoll v. Hyman

The evidence shows that possession was had under the lease during the period for which the rent is demanded. No express surrender is proven, and we are concluded, in this case, by the finding of the justice that there was no constructive eviction. Weiss v. Strauss, (Com. Pl. N. Y.) 14 N. Y. Supp. 776. The principal ground urged by 'the appellant for reversal relates to the insufficiency of the renewal agreement indorsed upon the lease to constitute a guaranty by the defendant for the renewed term. The-proposition is not to be supported. Apart from the consideration of the necessity of presenting the statute of frauds by pleading, the guaranty is sufficient, as to subject, parties, and consideration, by intrinsic reference to the lease renewed. Marston v. French, (Com. Pl. N. Y.) 17 N. Y. Supp. 509. It is signed by the party to be charged.. No reduction of the rent wTas properly to be allowed by reason of the fire which occurred. This was pleaded as matter of defense, merely, and, as above shown, the determination adverse to such defense must stand. The motion to amend the answer upon the *318trial, for the purpose of demanding damages in that regard, was of a nature which addressed itself to the justice’s discretion in this ■instance, (Tattersall v. Hass, 1 Hilt. 56,) and therefore is not to be reviewed, (Rosenwald v. Hammerstein, 12 Daly, 379. The right to ■relet under the sixth clause of the lease, with respect to defaults, ■was optional with the landlord, and did not involve a duty to the tenant. In view of the evidence, the fact that the rent for the latter part of the month of November, after the fire, was remitted, did not necessitate a finding that the lease was thereby terminated. An examination of the exceptions appearing upon.the record discloses no error prejudicial to the appellant. Judgment affirmed, with costs.