Supreme Court, Appellate Term, December, 1914. [Vol. 88.

APPEAL from a judgment of the Municipal Court, of the city of New York, borough of Manhattan, sixth district, rendered in favor of plaintiff, for the sum of $395, in a trial without a jury.

Dayton & Bailey (Alfred M. Bailey, of counsel), for appellant.

Godnick & Wilson, for respondent.

COHALAN, J. This action was brought by the plaintiff, as administratrix of James Loughran, deceased, to recover the sum of $395, alleged to be due from the defendant under an industrial policy of life insurance, issued on the life of the decedent. The appeal is based on the ground that the judgment rendered was against the weight of evidence. Much of the evidence in the case is documentary. The application for a policy of life insurance made by the decedent bears the date of September 11, 1912. It appears that on the recommendation of one Mrs. O'Connell the defendant's agent called at the Loughran home, 304 East Thirtysecond street, on the evening of that day. A man was introduced to him as James Loughran, and at the time the agent wrote on the application the words "September 11, 1912," and the person who appeared to be Loughran placed a cross mark upon the application. The decedent's wife, the plaintiff herein, and her niece were present at the time. It is significant that one of the most material issues involved in the case was the date upon which the application was signed, and yet the plaintiff did not call her niece at the trial of the action to corroborate her story as to the date when the application was signed. These facts are practically conceded by the parties to the action: that on September 11, 1912, the insured was in St.

Misc.] Supreme Court, Appellate Term, December, 1914.

Joseph's Hospital; that he entered Bellevue Hospital on the 27th day of August, 1912; that after being in Bellevue Hospital about a week he was transferred to St. Joseph's Hospital; that he came out of that hospital on the 18th day of September, 1912; that from the time he entered Bellevue until he was discharged from St. Joseph's Hospital, on the 18th day of September, 1912, he was never out of the hospital, and plaintiff never saw him at any one of these institutions. It appears furthermore from the proof that the insured died on the 2d day of April, 1913, from pulmonary tuberculosis, the disease which took him. to Bellevue and St. Joseph's Hospitals, and for which he was treated at these institutions. The application contains a cross mark instead of the signature of the decedent, and the question whether or not the real James Loughran, the plaintiff's husband, who was in St. Joseph's Hospital on the 11th day of September, 1912, could write his name, was a second material question in issue on the trial. Plaintiff testified that her husband could not write his own name, and at the same time admitted that her husband had insurance in the Metropolitan Life Insurance Company. The real James Loughran wrote his name on insurance applications in that company, on September 14, 1911, and on June 1, 1911; he did this in the presence of an agent of that company, and without any claim that he could not write. The evidence in the case is conclusive that in many instances the real James Loughran could write his name, and that he had always written it on every occasion when he had business to transact with the agents and physicians of the Metropolitan Life Insurance Company. The weight of such proof, in my view, should not be disregarded on this appeal. There is the additional circumstance that patients suffering from tuberculosis, and being treated.

Supreme Court, Appellate Term, December, 1914. [Vol. 88

in hospitals, do not ordinarily succeed in obtaining life insurance. Substantial justice requires the reversal of this judgment on the ground that it is against the weight of evidence. Judgment reversed; and a new trial ordered, costs to appellant to abide the event.

BIJUR, J., concurs, on the ground that plaintiff's failure to call her niece as witness and to explain even now the almost conclusive force of the documentary evidence adduced by defendant compels a reversal of the judgment.

SEABURY, J., dissents.

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

SCHWEGLER REALTY COMPANY, Appellant, v. AUDUBON NATIONAL BANK, Respondent.

(Supreme Court, Appellate Term, First Department, December, 1914.)

Landlord and tenant-covenants-surrender in good condition. removal of fixtures.

Where a tenant covenants to take good care of the premises, make no alterations without the written consent of his landlord, and at the expiration of the term deliver the premises in good condition, he is bound to surrender them in as good condition as they were at the commencement of the term, even though the landlord consented to the making of certain alterations.

Where it appears that the premises were returned with walls and ceilings broken, window boxes and radiators removed, heavy bars over the windows and window ledges broken, natural finish quartered-oak trim partly covered with red stain, a large window glass broken and the floor replaced by an irregular shaped tile floor, there is a breach of the covenant to surrender the premises in good condition.

Misc.] Supreme Court, Appellate Term, December, 1914.

Where a tenant removes domestic or trade fixtures, he must do so with as little injury as possible, and where the injury done is more than insignificant he must repair and restore the premises to their original condition.

APPEAL by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, in favor of the defendant after a trial without a jury.

Joseph Day Lee, for appellant.

Peter Condon (Augustus L. Richards, of counsel), for respondent.

COHALAN, J. This is an action to recover damages for the alleged failure of the defendant to surrender certain leased premises in good condition. The premises, under a written agreement, were leased in 1909 for two years, and they were to be used as a banking office. In June, 1911, a second lease was made, extending the term for two years and three months from the 1st day of October, 1911. In both leases there is contained the following covenant: "That the Tenant shall take good care of the premises and that no alterations are to be made on same without the written consent of the party of the first part and at the end or other expiration of the term shall deliver up the demised premises in good order or condition, damages by the elements excepted."

It is upon the breach of this covenant that the action is based. The court below found that the lessor had consented to the making of the alterations and the installation of certain fixtures, and thereupon decided that under neither lease was the plaintiff entitled to recover damages on the surrender of the premises.

Supreme Court, Appellate Term, December, 1914. [Vol. 88.

But even though permission was given to the defendant to make the changes in the beginning, nevertheless the defendant was bound to surrender the premises in as good condition as they were at the commencement of the term. Scott v. Haverstraw Clay & Brick Co., 135 N. Y. 141; Lazarus v. Ludwig, 45 App. Div. 486; McGregor v. Board of Education, 107 N. Y. 511. There was evidence in the case that the premises were returned with walls and ceilings broken, with window boxes and radiators removed, with heavy bars over the windows and window ledges broken, with natural finish quartered oak trim partly covered with red stain, with a large window glass broken and with the floor replaced by an irregular shaped tile floor. Defendant contends by the making of the second lease the landlord waived any breach of the covenant to surrender the premises in good order or condition, as provided for in the first lease; that its obligation at the end of the second lease was to surrender the premises in the same condition that they were in at the beginning of the second term, less the fixtures. Whatever the tenant's right was with respect to the removal of the fixtures during the first lease, it is plain that although it agreed in the second lease not to make any alterations in the premises, and to return them in good condition, it breached both of these covenants. It cannot be said that the taking out of the fixtures, partitions, paneling and other changes was not an alteration, and the damaged condition of the premises indicates that they were not surrendered in good condition. It follows, that so far as the second lease is considered, under the circumstances of this case, the plaintiff was not precluded from a recovery. In all cases where the defendant removes domestic or trade fixtures, he must do so with as little injury as possible, and where the injury done is more than insignificant, he must repair and restore