ant as to imply the same thing, and called a surrender by operation of law. The difficulty here arises under the rule as to surrender by operation of law. The defendant testified, it is true, to an express agreement or understanding with the plaintiff, in April, 1911, that he might vacate the premises at any time, and send the key to the plaintiff, and that it was in pursuance of such agreement that he did vacate and return the key on the 31st of the following month. But the plaintiff, admitting a conversation with the defendant in April in respect to the lease, denied that there was any such agreement between them, and the jury found a verdict in his favor. The defendant failed, therefore, to establish a surrender by express agreement or words as a subsisting fact. Nevertheless, it is undisputed, proved, and admitted (1) that, immediately following the April conversation, both parties applied for, and soon thereafter obtained, certificates to sell liquors-the plaintiff in the premises in question, and the defendant at another place in the same village; (2) that the defendant vacated the leased premises and sent the key to the plaintiff on the 31st of May, 1911, and has ever since continued in business at his other place; (3) that the plaintiff, retaining the key, had his liquor tax certificate at the premises for which he seeks to recover rent, during the month of June, 1911, but did not do any business then, because the place "wasn't ready"; (4) that he occupied or used one-half of the store under a storekeeper's license during that month; and (5) that, beginning about the 4th of the succeeding month, he has ever since fully occupied and used the premises as a saloon or place for the sale of liquors. These facts and acts of the parties are so inconsistent with the relation of landlord and tenant as to indicate that they had agreed, impliedly at least, to consider the surrender as made. It seems quite impossible to arrive at any other conclusion. If that conclusion is correct, a surrender by operation of law was effected. The only thing inconsistent with such conclusion is the testimony of the plaintiff that, some time from the 1st to the 3d of June, he demanded rent of the defendant for that month, and payment was refused. But that fact, if it be a fact, is not enough to overcome the other undisputed and more potent facts, enumerated above, and tending to show that the plaintiff accepted the surrender of the premises. Besides, defendant denies this alleged demand for rent. And the plaintiff, with admitted knowledge that defendant was good for any judgment he might obtain against him, made no further demand for the June rent nor any demand for the rent falling due on the 1st of July, August, or September, until in October, after the expiration of the lease, but continued in the exclusive use and possession of the property. The plaintiff could not do this. He could not himself, in the absence of an agreement to that effect, enjoy such use and benefit of the property, and require the defendant at the same time to pay rent therefor. Or, as this court has said in a somewhat similar case: "In absence of an agreement, express or implied, to let on the tenant's account, the landlord could neither enjoy the use of the property nor donate it to another. He could not assume dominion, not delegated by the tenant, without impairing the tenant's right of enjoyment. The tenant, if obligated to pay the rent, was entitled to such sole control and beneficial use of the premises as flowed from the terms of letting." Schmidt v. Vahjen, 143 App. Div. 479, 481, 127 N. Y. Supp. 1038, 1039. In that case the landlord permitted a third person to use the abandoned store a few days, without the payment of rent or compensation. And the court further said: "Thereby a term in another was created, limited in time by the landlord's will. Thereby the tenant was ousted, and his premises appropriated to another person for purposes of business." There is no claim, or ground for any, of an agreement here that the plaintiff should use or let this property on the defendant's account. Yet, without such an agreement, express or implied, he had no right to relet, or occupy the premises himself; and, having done so, he cannot hold the tenant responsible for the rent. Schmidt's Case, 143 App. Div. 479, 127 N. Y. Supp. 1038; Gaffney v. Paul, 29 Misc. Rep. 642, 61 N. Y. Supp. 173; McAdam on Landlord & Tenant (2d Ed. Supp.) 142. Abandonment of the premises by the tenant and an acceptance of the surrender by a resumption of possession by the landlord constitutes a surrender by operation of law. 24 Cyc. 1372. Doubtless, a surrender is not to be implied against the intent of the parties, as manifested by their acts, and when such intention cannot be presumed, without doing violence to common sense. Coe v. Hobby, 72 N. Y. 141, 146, 28 Am. Rep. 120. The receipt and retention of the key by the plaintiff may have been equivocal acts; and so as to his omission to take any steps, aside from a mere demand, to collect the rent for the month of June; or even to make any demand for the rent for either of the other three months, until after the end of the term. But not so as to the plaintiff's application for a liquor tax certificate covering the last four months of the term, and his possession and use of the premises for business purposes, under such certificate, during that time. These acts speak for themselves. There is nothing equivocal or uncertain about them; and, in the absence of evidence that they were done for some other purpose, such as to repair or protect the property, or the like, they must be held to constitute an acceptance of the surrender proffered by defendant's abandonment of the property. It is apparent that the verdict is for the $400 rent alone. The plaintiff's claim of $100 damage to the property need not, therefore, be considered. The judgment and order should be reversed, and a new trial granted; costs to abide the event. (152 App. Div. 536.) MITCHELL v. T. A. GILLESPIE CO. (Supreme Court, Appellate Division, Third Department. September 11, 1912.) 1. TRIAL (§ 260*)-WRONGFUL DEATH-INSTRUCTIONS. In an action for the wrongful death of an employé, a requested instruction that the employer was not an insurer of the safety of the deceased, and was only obliged to use reasonable care for his safety, was not sufficiently covered by an instruction merely that the employer was not the insurer of the safety of deceased, and the refusal of such requested instruction was error. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 2. TRIAL (§ 252*)-WrongFUL DEATH-INSTRUCTIONS. Where, in an action for the death of an employé, there was no evidence of any intervening cause, but it appeared that his death was caused either by the defendant's negligence or by unavoidable accident, and the court instructed that the defendant was not liable unless negligent, it was not error to refuse an instruction that, before the jury could "find a verdict against the defendant, they must find the defendant was guilty of some act of negligence, and that that act was the proximate cause" of the death. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] Betts, J., dissenting. Appeal from Trial Term, Ulster County. Action by Electra H. Mitchell, as administratrix of George S. Mitchell, against the T. A. Gillespie Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted. Argued before SMITH, P. J., and KELLOGG, HOUGHTON, BETTS, and LYON, JJ. E. Clyde Sherwood, of New York City, for appellant. PER CURIAM. [1] We would have no hesitation in affirming the judgment appealed from, except for the refusal of the court to charge, as requested by the defendant's counsel, that the defendant master was only obliged to use reasonable care for the safety of plaintiff's intestate, its servant. In his main charge the learned trial court instructed the jury only generally that, in order to find a verdict in behalf of the plaintiff, they must find that the killing of her intestate was the result of negligence on the part of the defendant. There was no instruction as to the degree of care which the law imposed upon the defendant as master, nor was there any attempt to define the character of negligence which would render it liable. At the close of the charge the defendant's counsel requested the court to further instruct the jury that: "The defendant in this action was not the insurer of the safety of the deceased. It was only obliged to use reasonable care for his safety." For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes In response to this request the court said: "I will charge that the defendant was not the insurer of the deceased." And the defendant excepted to the refusal to charge as requested. It is not claimed that this request did not embody the correct rule of law; but it is urged that, because the court did charge that the defendant was not an insurer of the safety of the deceased, the jury must have understood that the defendant's duty was measured by reasonable care only. We do not think the jury could have received such an impression, either from the main charge, or from the separation by the court of the request made by defendant's counsel. [2] There was a further request made by defendant's counsel as follows: "I ask you to charge that, before they [the jury] can find a verdict against the defendant, they must find the defendant was guilty of some act of negligence, and that that act was the proximate cause of the deceased losing his life." The court refused this request, except to say that the jury must find some act of negligence on the part of the defendant. This request embodied a correct rule of law; but, strictly speaking, it was not applicable to the facts proved. There was no intervening cause which might have produced the death of the intestate. His death was caused either by the negligence of the defendant (in the absence of carelessness on the part of the intestate, which under the proofs the jury were justified in finding was not the fact) or by unavoidable accident. There was no intervening agency or act which could have been the proximate cause of his death. If the request was intended to instruct the jury that they must specify by their verdict some one of the negligent acts which the plaintiff asserted the defendant had been guilty of, still the request was properly denied. It was the duty of the jury to determine that the defendant was actually guilty of negligence in some definite particular, and that such act or omission was the proximate cause of the injury; but they need not announce by their general verdict which particular act or omission they regarded as negligent. The refusal of the court to charge as requested constitutes, therefore, no_ground for reversal. For the error in refusing to charge the other request, however, the judgment and orders must be reversed, and a new trial granted, with costs to the appellant to abide the event. BETTS, J. (dissenting). The jurors, by the form of their verdict in this case, have shown that they were neither deceived nor misled by the charge of the court. They brought in a sealed verdict, in which they found "the defendant guilty of negligence in not having the car covered, and shaft not equipped with light, and the wires not being properly adjusted." None of these matters of negligence, which the jury found had been committed by the defendant, required anything more than reasonable care on de fendant's part to provide for the safety of its employés, including the deceased. Hence the jurors' verdict showed that they did not charge the defendant with the exercise of any high degree of care in providing a reasonably safe place for its employés in which to do its work. Speculation as to what the jury might possibly have done under the court's charge is idle, where, as here, the court has before it what they actually did do in the sealed verdict returned, signed by each of the jurors. Neither the parties nor the courts should be burdened with the additional unnecessary labor, expense, and delay of another trial in this case, upon the judicial refinement shown to be absolutely without merit in this case. I think the judgment should be affirmed. WYNUS v. UTZ. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) BROKERS (55*)-RIGHT TO COMPENSATION-PROCURING CAUSE. Though a broker employed to sell oysters on commission procured a prospective customer, who did not take the oysters, but who later procured a customer for the principal, the broker was not the procuring cause of the sale to the latter person, and could not recover a commission therefor. [Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 82-84; Dec. Dig. § 55.*] Appeal from Suffolk County Court. Action by John Wynus against Robert Utz. From a judgment dismissing the plaintiff's complaint on the merits, plaintiff appeals. Affirmed. Argued before HIRSCHBERG, THOMAS, CARR, WOODWARD, and RICH, JJ. L. E. Raynor, of Greenport, for appellant. HIRSCHBERG, J. The action is to recover commissions on the sale of oysters. At the close of the case each side moved for the direction of a verdict, and the court decided the controversy in the defendant's favor. The employment of the plaintiff by the defendant to sell the latter's oysters on commission in the fall of 1909 is undisputed. It is also undisputed that the defendant procured Capt. Wedmore as a prospective purchaser, and that negotiations were entered into between the defendant and the Captain for the sale, but that such negotiations proved wholly abortive. The Captain wanted 10,000 bushels of oysters at the time for planting in the harbor of New Haven, Conn.; but, having learned that his proposed planting ground was about to be condemned as unsanitary, he called the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |
