#### Bertha Koehler, as Executrix of Hermann Koehler, Deceased, Appellant, *against*Joseph Scheider, Respondent.

(Decided June 2d, 1890.)

The provision of section 830 of the Code of Civil Procedure that, where a party has died since the trial of an action, his testimony at “the former trial” may be given in evidence at a new trial, applies to testimony at any former trial, and not merely that taken at the last preceding trial, where there have been more than one.

Notice by a landlord to a tenant to vacate the demised premises, “on or before” the day on which the tenancy expires, is not a continuing offer to accept a surrender by the tenant at any time before that day.

Appeal from a judgment "of the General Term of the City Court of New York affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

The action was brought for rent, for the months of March and April, 1886, of premises let for a year from May 1st, 1885. The answer set up a constructive eviction as a defense. A judgment of the City Court for plaintiff entered on a verdict directed by the court was reversed on appeal to this court, and a new trial ordered (See 15 Daly 198). At such new trial, the jury found a vSrdiet for defendant. A motion by plaintiff for a new trial was denied and judgment for plaintiff was entered on the verdict. From the judgment and the order denying her motion for a new trial, plaintiff appealed to the General Term of the City Court, which affirmed the judgment and order; and from that decision plaintiff appealed to this court.

*Charles P. Paly and P. J.*Myers, for appellant.

*Creorge S. Yeaman and Maurice Rapp,*for respondent.

*236Larremore, Ch. J.

There have already been so many trials of this case that it is to be regretted that the judgment must be again reversed. I think there was sufficient to go to the jury on the question of constructive eviction. I am also of opinion that it was not error to allow the testimony of plaintiff’s testator, given on the first trial of this1 action, to be read in evidence on the present trial. The contention of appellant' seems to be that section 830 of the Code would allow only such testimony as was taken upon the trial im.mediately preceding this one; but I think the language of the section sufficiently broad to take in any former trial where evidence was given by a party since deceased which it is subsequently desired to use. There is nothing to show that such was not the intention of the legislature, and the opposite party always has the compensating privilege, granted by section 829, of being himself examined orally as to any .matters referred to in the testimony so read.

But the trial judge fell into one very grave error in his charge. It appears that, on or about the 1st day of February, 1886, the landlord, being-plaintiff’s said testator, sent the following noté to defendant dated that day:

“ Dear Sir:

“ I hereby beg to inform you that I desire you to vacate the premises on First Avenue which you now rent from me, on or before April 30th, 1886.”

The trial judge told the jury that they might read this letter in connection with the following one of March 1st, 1886, from the defendant:

“ Mr. H. Koehler.

“ Dear Sir:

“We hereby surrender you the keys of premises occupied by us and give you full possession. The premises being untenantable is the cause of our removal.”

The instruction to the jury was, in effect, that the aforesaid *237letter from the landlord was a continuing offer from the time of its transmission, to accept a surrender of the existing lease whenever the defendant chose to make it; that the letter from the defendant might be construed to operate as such surrender; and that the lease, therefore, came to an end on March 1st. We. think this was a misconstruction of the landlord’s words. Some such communication from him was necessary at some time before the termination of the original lease, because otherwise, said lease being a verbal one for one year, a new demise for a second year would arise by operation of law if defendant elected to remain. In the exercise of common sense, as well as good legal judgment, this is the only interpretation that could, be put upon the landlord’s letter. Upon a former trial of this action one of the judges of the court below has construed this letter as follows:

> “ Where a landlord gives his tenant a notice to move on or before April 30th, that means he is not to move after April 30th, that he is to move on the termination of the tenancy, the liberty to move sooner being a liberty the tenant has. A landlord may give a tenant notice to move on or before the 1st of May, his lease being up to the 1st of May; but that does not mean that if a tenant should move out the next day, he should pay no rent. It means that the landlord will insist upon his legal right to have him move out before the last day of the term. ‘ On or before ’ is common language of the law, meaning that if you remain one day after, you remain at your peril, you are a trespasser, a wrong-doer. A landlord can take nothing away from a tenant’s rights, and waives nothing by serving a notice of that kind.”

This view is eminently sound, and it was grave error to submit any different one to the jury. They were allowed to find a verdict either on the ground of eviction, or of alleged surrender of the lease brought about by this correspondence. Of course we cannot say upon which ground their finding was based, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

*238Bookstaver, J.—As was said by us when this case was before us on a former appeal, “ what would justify a tenant in vacating the premises ” hired by him, for a constructive eviction, “ depends so much on the terms of the lease ” and various other conditions in that opinion set forth, that any discussion of it at that time would be premature, as the testimony on the new trial might change the aspect of the case. I still deem it premature to discuss that question at this time or to express any opinion on that evidence presented to us now. The question is a very close one and can be satisfactorily decided only when all the facts are before the court to be determined after a trial free from error in other respects.

The plaintiff having died before the last trial of this action, and the defendant having become incompetent, under section 829 of the Code, to testify to any personal transaction between himself and the deceased, he availed himself of the right given by section 830 of the Code to read his evidence given on both the former trials of this action, subject to legal objection, etc., as provided in section 830. The plaintiff objected to the reading of the testimony given on the first trial, contending that the section confined the defendant to reading the evidence given by him on the last preceding trial, and did not permit the reading of that given on the first trial. I agree with the learned Chief Judge that no error was committed in allowing both to be read. The appellant’s contention is based upon the language used in the section, which permits the party rendered incompetent to read his evidence “ taken or read at the former trial,” insisting that it means the last trial only, if there be more than one. This construction, if correct, would confine the reading of such testimony to the first trial only, following the death of the other party, for the language permitting such reading is *“*At *a*new trial or hearing,” and not any new trial, if more than one should be required, which would defeat the object of the section in case there were two trials following the death of a party. I think the intention of the section was to give competency to any testimony of the witness given in the case between the same parties before *239the incompetency attached to him. The then plaintiff, against whose executrix it is now offered, had the same opportunity, and certainly as great an interest as his executrix can have, to resort to every test to probe the witness and his evidence. The same reasons which render it proper to allow the testimony given on the last trial preceding the plaintiff’s death operate to allow the reading of the testimony given on the first trial, as far as the same is pertinent to the contest. I therefore think the section was intended to permit the reading of any testimony given under such circumstances, whether on the last or any preceding trial of the action.

The question read from the former examination of the witness, in which he was asked to state what the deceased had agreed to furnish and what he had agreed to do, is, I think, fatal. It clearly called for the conclusion of the witness merely, and not for what took place or was said between the parties. The learned judge who presided at that trial first excluded the question, on plaintiff’s objection that it merely called for a conclusion, and when shortly afterwards it was repeated allowed it, and the answer shows that he gave his conclusions only, and not what was said or done. It was sufficient for the plaintiff to object as he did on the grounds before stated by him, and it was not necessary to repeat those grounds ; the court’s attention had been specifically called to them *(Dilleber*v. *Home Life Ins. Co.,*69 N. Y. 256, 260).

The testimony given at the former trial is allowed to be read subject to any legal objection to the testimony, or to any question put to the witness.

I agree with the learned Chief Judge, for the reasons assigned by him, that it was error to charge as was done in regard to the letters of February 1st, 1886, and March 1st, 1886.

For these reasons the judgment must be reversed and a new trial ordered, with costs to abide the event.

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