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Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Proceedings by Anthony Schwoerer, as landlord, against Louis C. Connolly, as tenant. From a final order and warrant of dispossess, the tenant appeals. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
Gilroy, Maher & Gilroy, for appellant.
Frank Thorn, for respondent.

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FREEDMAN, P.J. The tenant in these proceedings held a lease for a term of 3 years and 15 days, from April 15, 1903, to May 1, 1906, and was dispossessed in March, 1904, upon the ground that he was holding over after the expiration of his term. The landlord's contention was—and he was supported therein by the decision of the trial court—that under the terms of the lease he had a right to terminate it on giving five days' notice, and without cause shown. The only question to be settled by this appeal is the proper construction of the first paragraph of the lease.

The lease first recites that the tenant takes from the landlord"Subject to the conditional limitations hereinafter stated, the third apartment on the third floor

to be occupied as a strictly private dwelling apartment by his family, consisting of himself, wife, child, and servant, and not otherwise."

Then, after stating the sum fixed upon as rental, and time of its payment, there follows this clause:

"And it is expressly understood and agreed upon the part of said tenant that the occupation of said demised premises by himself and family and the character of the occupancy thereof as above expressed is an especial consideration and inducement for the granting of this lease to him by said landlord who expressly reserves to himself the right and privilege to at any time terminate the same upon service on tenant of at least five days' previous notice in writing of intention so to do, and upon the expiration of said notice so served this lease and the term thereby granted and demised shall cease and terminate, and be at an end and said landlord or his assigns shall thereupon be entitled to the immediate possession of said premises and have and enjoy same again as of his former estate and interest therein, anything hereinbefore contained to the contrary hereof in any wise notwithstanding; this provision being intended by the parties hereto as a conditional limitation and to be so construed in all litigations and proceedings concerning it.”

Upon the trial no evidence of change in the occupation or character of the occupancy was given, and the rent for the month of March, 1904, had been paid in advance.

The defendant offered no testimony, but preserved his rights by a motion for a dismissal at the close of plaintiff's case upon the ground that there was no evidence of the change of occupation, and that the conditional limitation is based upon that. We think this motion should have been granted. The construction put upon the terms of the lease by the landlord is unwarranted, and gives no force or effect whatever to the phrase, “subject to the conditional limitations hereinafter stated," and the other portions of the lease above quoted The lease was given by the landlord and accepted by the tenant “sub. ject to certain conditional limitations.” “Limitation” means restric

and 122 New York State Reporter tion, and "conditional” has reference to a situation, state, or external circumstances. The limitations contained in the lease restricted the tenant to the use of the premises as a strictly private dwelling, to be occupied by himself, wife, child, and servant, and not otherwise. Upon the continuance of this situation depended his right to remain in the premises, and the right of the landlord, after the giving of five days' notice mentioned in the lease, to dispossess the tenant, was dependent upon a change in these conditions; that is to say, a change in the occupation or character of the occupancy. In other words, the right is given to the landlord to terminate the lease upon but five days' notice, upon failure of the tenant to perform the condition imposed upon him of keeping the premises for the same occupants and the same purposes as rented. Any other construction would deprive the words "conditional limitation” of any meaning, as used in the lease, and would give the landlord an unconditional, absolute, and arbitrary right to dispossess his tenant without cause, express or implied. There is a marked dissimilarity between the terms of the lease in this case and the terms of the lease in the case of lanhattan Life Ins. Co. v. Gosford, 3 Misc. Rep. 509, 23 N. Y. Supp. 7, relied upon by the respondent herein. In the latter case the lease provided that if the landlord shall at any time deem the tenancy undesirable," and it was there held that the landlord need give no reason for deeming the tenancy undesirable. The language used therein is quite similar to that frequently used in a chattel mortgage, in which the mortgagee reserves the right to take possession of the mortgaged property, and sell the same at either public auction or private sale, "if he shall at any time deem himself unsafe," and in such cases it has been frequently held that the mortgagee can act according to his rights therein given at any time without giving any ground therefor. But it will be noted that in the use of such language there is no limitation whatever. As Mr. Justice Bischoff, in his opinion in Manhattan Life Ins. Co. v. Gosford, supra, says, “The lease did not circumscribe the landlord's discretion by requiring that it should proceed upon sufficient ground.” In the case at bar the whole lease must be read together, and the intent of the parties gathered therefrom. No harsh or strict construction should be given thereto, when by a fair and reasonable one exact justice can be done between the parties; and it is not fair to presume that the tenant intended to bind himself to the restricted use of the premises as a strictly private dwelling apartment for but four persons for a term of over three years, and at the same time confer upon the landlord the absolute right to terminate the lease without cause after five days' notice.

Final order reversed. New trial ordered, with costs to the appellant to abide the event. All concur.

MEEHAN V. SUPREME COUNCIL CATHOLIC BENEV. LEGION.

(Supreme Court, Appellate Division, Second Department. June 10, 1904.) 1. TRIAL-DIRECTING VERDICT-EVIDENCE.

In an action on a benefit certificate, the evidence as to the member's age considered, and held to warrant the direction of a verdict for defendant on the ground that he was ineligible because beyond the age limit

when he applied for membership. 2. SAME-BAPTISMAL RECORDS--ADMISSIBILITY.

In an action on a benefit certificate, a baptismal record of the church where the member was baptized is admissible on an issue as to his age.

Hirschberg, P. J., and Bartlett, J., dissenting. Appeal from Trial Term.

Action by Belinda Meehan against the Supreme Council Catholic Benevolent Legion. From a judgment for defendant, the plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.

Edward Herrmann, for appellant.
John C. McGuire, for respondent.

JENKS, J. The action is brought to recover upon a certificate of membership in a benefit corporation. It is defended on the ground that the member was ineligible because he was beyond the age limit when he applied for membership. It was admitted that if he was then upward of 55 years of age he was barred, and it was conceded that the sole issue was the age of the decedent. The learned court, at the close of the testimony, directed a verdict for the defendant, and the plaintiff appeals.

The learned counsel for the appellant insists that the case should have been submitted to the jury, and invokes the authority of McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66, 60 N. E. 282. That decision is but a reiteration of the principle that the jury is the trier of the facts. But the opinion states that there must be an actual issue of fact, and if, on the contrary, the evidence is insufficient, or if it has been answered so conclusively that as matter of law no question of credibility or issue of fact is left, or if there is no evidence to sustain an opposite verdict, then the court may direct a verdict.

I think that the learned court (Nash, J.) did not err in assuming that there was no evidence to sustain a verdict for the plaintiff, or that, so far as the evidence first made for her, it was so conclusively answered as to warrant a verdict for the defendant. The decedent stated in his application, made on October 2, 1894, that he was then between 53 and 54 years of age, and that he was born on December 5, 1841. The evidence adduced by the plaintiff is her testimony and that of James Maloney. The plaintiff testifies that she had known the decedent, who was her husband, since she was 8 years old; that from what her mother had told her she believes that she is 60 years old, but from the records of her baptism which she had procured from the Holy Roman Church of her parish in Ireland she believes that

and 122 New York State Reporter she is 63 years old. She also testifies that her husband was a year or two older than she was, and that, as appeared from her marriage certificate read in evidence, they intermarried in 1858. Mr. Maloney testifies that he knew the decedent, whom he first met in 1856, and that he attended a dancing school with him in 1856, 1857, and 1858. He testifies that he is 69 years and 4 months old; that in 1857 the decedent looked to be about 17 years old, as he believed, and that there was a difference of about years between them. If the decedent was born in December, 1811, as he stated in his application, then when he intermarried with the plaintiff in 1858 he was 16 years and 5 months old. If at that time he was a year or two older than his bride, as she testifies, then she was at that time either 14 or 15 years of age. But slie testifies that by her mother's say so she was 17 years old, and by her deduction from the said parish register 20 years of age, at the time of the marriage. If we credit the parish record rather than her mother's speech, then she was 20 years old at the time of her marriage; and, crediting her own statement that her husband was a year or two older, then he was married at the age of 2? years. If this be the fact, he was born in 1936, and was 58 years of age when he sought membership in the defendant. This sustains the contention of the defendant, and bears out the parish record, read by it in evidence, which shows that a son of the decedent's father and mother, named as this decedent was named, was baptized in April, 1836. Again, this register shows that a full sister of Edward Meighan or Meehan, named Julia, was baptized on May 27, 1842. If this be true, and if it also be true that, as stated by the decedent, he was born on December 5, 1811, then Julia was baptized a little more than 5 months after the decedent was born. But the sister of Edward Meehan testifies that Edward was next in age to her, and it appears that she was baptized in 1833; consequently it follows that Edward was older than Julia. If Edward was the senior of Julia, it is almost, if not altogether, a physical impossibility that he could have been born on December 5, 1841, and yet a younger full sister have been born so as to be baptized on May 27, 1812.

I think that there was no question sufficiently raised as to the identity of the decedent with the Edward Meighan named in the parish register. The testimony shows that the name was spelled in either way, the principle of idem sonans applies, and the identification of the decedent as Edward, a son of Thomas Meighan and Mary Wall, is clearly established by the testimony of his sister Catherine and of others.

When the testimony was closed, the case presented to the learned court the testimony of the plaintiff (which, as to the facts stated by her and their logical probative force, made for the defendant), and the testimony of a witness whose acquaintance with the defendant, founded in dancing school in 1856, 1857, 1858, was apparently limited to such association "during the session," and, for aught that appeared, ended more than 40 years ago. “In 1857 Edward Meehan looked to be about 17 years old, I believe. There was a difference of about 7 years in our ages." He gives no fact whatever for the basis of his final bald assertion.

Opposed to the plaintiff, then, are many of the facts of her own testimony, the parish records, and the statements of relatives and neighbors of the Meehans. It is true that these statements are not as definite as they might be, and they do not fully accord, but nevertheless they tend to show that the decedent was beyond the age limit when he applied for membership in the defendant. In the final analysis the plaintiff had but little, if anything, to rest upon in the testimony adduced by her, save the final statement of the witness James Maloney. That is plainly insufficient to sustain a verdict for the plaintiff, when opposed by the evidence presented by the defendant.

I think that the exception to the admission of the baptismal record of the parish church is not well taken. It is true that in a case cited as in 15 N. Y. Supp. 41, by the learned counsel for the appellant (Preuster v. Supreme Council, 60 Hun, 324, 327, 15 N. Y. Supp. 41), the court say that a copy of an entry in the baptismal register of St, Stephen's Church at Langensalza, Saxony, was inadmissible as evidence in that case, but it gives no reason and cites no authority. I cannot, therefore, determine the ground of the decision; it may have been based upon some fault in proof, or some circumstance peculiar. to that case. But that such a register was admissible is expressly held in Maxwell v. Chapman, 8 Barb. 579, 582, and by the former General Term of this department in Jacobi v. Order of Germania, 73 Hun, 602, 26 N. Y. Supp. 318, and the decision is cited for the like proposition in Hartshorn v. Metropolitan Life Ins. Co., 55 App. Div. 471, 67 N. Y. Supp. 13.

The judgment should be affirmed, with costs. All concur, except HIRSCHBERG, P. J., and BARTLETT, J., who dissent on the ground that in their opinion the question was one for submission to the jury.

PETTY V. EMERY.

(Supreme Court, Appellate Division, First Department. June 10, 1904.)

1. TRUSTS-BREACH OF TRUST-ACTION AGAINST TRUSTEE-NECESSARY AVERMENTS.

While a trustee must not do any act inconsistent with the trust, or deny the title of the cestui que trust, plaintiff, in an action against the trustee, must set forth facts which are inconsistent with the trust, or which con

stitute a denial of the cestui's trust. 2. PLEADING-CONCLUSIONS OF LAW.

Allegations that defendant has arbitrarily and wrongfully manipulated the affairs of a company, and has denied and disputed plaintiff's right to

certain stock, are mere conclusions of law. 3. SAME-EFFECT OF DEMURRER.

On demurrer, conclusions of law are not admitted.

Appeal from Special Term, New York County.

Action by William S. Petty against Samuel Emery. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed on the opinion of the court below.

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