Eno v. Del Vecchio. “Witnesseth, that the said party of the first part has agreed to let, and hereby does let, and the said party of the second part has agreed to take, and does hereby take, the house known as number 496 Broadway, in the city of New York, for the term of five years, to commence on the first day of May, 1851, and to end on the first day of May, 1856, and the said party of the second part hereby covenants and agrees to pay unto the said party of the first part, the yearly rent or sum of fifteen hundred dollars, payable quarterly, to wit, on the first days of August, November, February, and May, in each year. Also to make all alterations and repairs at his cost and expense. And also shall pay the regular annual charge or rent, which is or may be charged, assessed, or imposed, according to law, upon the said house or tenement for Croton water, and to quit and surrender the premises at the expiration of the term in as good state and condition as the reasonable use and wear thereof will permit, damages by the elements excepted. And the said party of the second part further covenants that he will not assign, let, or underlet, the whole or any part of the said premises, without the written consent of the said party of the first part, under the penalty of forfeiture and damages, and that he will not occupy the said premises, nor permit the same to be occupied. for any business deemed extra hazardous, without the like consent under the like penalty, and the said party of the second part further covenants, that he will permit the said party of the first part, or his agents, to show the premises to persons wishing to hire or purchase, and on and after the first day of February next preceding the expiration of the term, will permit the usual notice of 'To Let,' or 'For Sale,' to be placed upon the walls or doors of said premises thereon, without hindrance or molestation; and also if the said premises, or any part thereof, shall become vacant during the said term, the said party of the first part may re-enter the same, either by force or otherwise, without being liable to any prosecution therefor, and to relet the said premises, as the agent of the said party of the second part, and to receive the rent thereof, applying the same first to the payment of such expense as he may be put to in re-entering, and then to the payment of the rent due by these presents, and the balance (if any) to be paid over to the said party of the second part. "And the said party of the second part hereby further cove Eno v. Del Vecchio. nants, that if any default be made in the payment of the said rent, or any part thereof, at the times above specified, or if default be made in the performance of any of the covenants or agreements herein contained, the said hiring and relation of landlord and tenant, at the option of the said party of the first part, shall wholly cease and determine. And the said party of the first part shall, and may re-enter the said premises and remove all persons therefrom. And the party of the second part hereby expressly waives the service of any notice in writing of intention to re-enter, as provided for in the third section of an Act entitled 'An Act to abolish distress for rent, and for other purposes, passed May 13, 1846.' "In witness whereof, the parties to these presents, have hereunto set their hands and seals, the day and year first above writ"ALBERT LOSEE. [Seal.] ten. "In consideration of the letting of the premises above mentioned, to the above-named I hereby covenant and agree, to and with the party of the first part, above named, and his legal representatives, that if default shall at any time be made by the said in the payment of the rent, and performance of the covenants above contained, on his part to be paid and performed, that I will well and truly pay the said rent, or any arrears thereof, that may remain due unto the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants, or either of them, without requiring notice of any such default from the said party of the first part. "Witness my hand and seal, the eighth day of February, in the year of our Lord, one thousand eight hundred and fifty-one. "JACOB F. OAKLEY. [Seal.] "Witness-GEORGE PECKHAM." The said George Peckham further testified, that the plaintiff had received under protest, from the tenant, all the rents payable under Eno v. Del Vecchio. such lease, without any deduction for any injuries to the premises. and that the plaintiff had paid nothing for any repairs of any injury complained of in the complaint in this action. The counsel for the plaintiff then read in evidence a deed, bearing date the 19th day of January, 1844, made by John L. Lawrence, administrator of the goods, etc., of Isaac Lawrence, deceased, to the plaintiff, and one John J. Phelps; and also a deed, bearing date the 18th day of June, 1846, made by the said John J. Phelps to the plaintiff, in and by which deed the premises now known as No. 496 Broadway are conveyed by the following description: "All that certain lot, piece, or parcel of land, situate, lying, and being in the fourteenth ward in the city of New York, bounded and described as follows: beginning at a point on the easterly side of Broadway, eighty-six feet northerly from the north-easterly corner of Broadway and Broome-street, running thence northerly along Broadway aforesaid twenty-three feet, thence easterly one hundred feet, thence southerly, parallel to Broadway, twenty-three feet, thence westerly one hundred feet to Broadway aforesaid; the said lot being now known and distinguished by the street number four hundred and ninety-six, (496,) Broadway, being the same premises conveyed to the said Amos R. Eno and John J. Phelps, parties hereto, by John L. Lawrence, administrator, etc., by indenture bearing date the nineteenth day of January, 1844, and recorded in the office of register of the city and county of New York, in liber 446 of Conveyances, p. 72." The counsel for the defendants admitted that the said John L. Lawrence had lawful authority to make said deed. The counsel for the plaintiff offered in evidence a deed, bearing date the 20th day of November, 1839, purporting to have been made by Isaac Lawrence, and Cornelia B., his wife, to Julia B. L. Wells, for the premises now known as 494 Broadway, in which deed the said premises are described in the words and figures following, to wit: All that certain house and lot of land, lying and being in the fourteenth ward of the city of New York, on the easterly side of Broadway, now known and distinguished as No. 494, in said street, bounded as follows, to wit: westerly, in front, on Broadway; easterly, in the rear, by land now or formerly of John Jacob Astor; northerly, by the house and lot of the said John Jacob Eno v. Del Vecchio. Astor, containing in breadth, in front and rear, twenty-three feet, and in depth, on each side, one hundred feet, be the same more or less. The northerly wall of said house, hereby conveyed, being a party-wall, and the northerly side of said lot, hereby conveyed, being in a line through the centre of said wall. The counsel for the defendants objected to the reception of said deed in evidence, on the ground that the plaintiff has complained as for injuries to an ancient wall, and is not entitled to give evidence by deed of a reservation to his grantor of an easement in the wall. The court overruled the objection, and received the deed in evidence, to which the counsel for defendants duly excepted. The counsel for the plaintiff then proved, that the defendant Del Vecchio is the lessee for a term of years of the premises at 494 Broadway, and that the defendant Snyder had made the alterations on those premises for the defendant Del Vecchio. The counsel for the plaintiff rested his case, and the counsel for the defendant Snyder moved for a dismissal of the complaint, as to said defendant, on the grounds: 1st. There is no evidence to connect Snyder with the injury complained of. 2d. The plaintiff must elect whether he will go against Del Vecchio or Snyder. He can not sue both principal and agent in one suit. 3d. There is no proof showing that this would be an injury to the reversion Which motion was denied by the court, and the counsel for the defendant Snyder duly excepted. The counsel for the defendant Del Vecchio moved for a dismissal of the complaint, as to said defendant, on the grounds: 1st. There is no evidence showing that the plaintiff had an easement in that part of the wall which stood on the defendant's lot. 2d. That the plaintiff, by his complaint, claims damages to both the possession and the freehold; the proof shows an outstanding lease for years, and the plaintiff is not entitled to recover for injuries to the possession, and can only recover for injuries to the freehold by complaining as reversioner. 3d. There is no evidence that Del Vecchio did the work which occasioned the alleged injury, or employed the men who did it. 4th. This action can not be maintained jointly against the principal and agent. 5th. There is no evidence to show that the alterations on the defendant Eno v. Del Vecchio. Del Vecchio's premises were done in a negligent or unskillful manner; but, on the contrary, the evidence is, that it appeared to have been done carefully. The complaint is not sustained by the evidence, and should be dismissed. 6th. The action is improperly brought. It should have been an action of trespass, and not on the case. Which motion was denied by the court, and the counsel for the defendant Del Vecchio duly excepted. The counsel for the defendants then gave evidence tending to show that the alterations in the premises No. 494 Broadway were made in a prudent and careful manner, that the undermining of the division wall was done in sections of two or three feet at a time, and that the division wall, and the front and rear walls of the plaintiff's house, were cracked at the time of the alterations in No. 494 Broadway. The defendants also gave evidence tending to prove that the front of the building 496 Broadway had been so altered and repaired, as to make the same as perfect as before the alleged injury. The counsel for the defendant Del Vecchio called as a witness upon his behalf the defendant John Snyder, who testified that he was employed by the defendant Del Vecchio under a contract to make the alterations on No. 494 Broadway, that he did make those alterations pursuant to such contract, furnished the materials therefor, and employed and paid the men who did the work; that before he commenced work he called on the tenant in possession of 496 Broadway. The defendant Del Vecchio offered to prove, that before the work on 494 Broadway was commenced the witness called on the tenant in possession of 496, who was the assignee of the lease of the plaintiff to Losee, and notified him of the intention to make the alterations on No. 494, and that he assented thereto. The counsel for the plaintiff objected, the court sustained the objec tion, and the counsel for the defendant Del Vecchio duly excepted. The counsel for the defendant Snyder offered to prove the same facts by the defendant Del Vecchio, the counsel for the plaintiff objected, the court sustained the objection, and the counsel for the defendant Snyder duly excepted. When the evidence was closed, the counsel for the defendant Del Vecchio |