#### August Trenkmann, Appellant, *v.*Minnie L. Schneider, Respondent.

(Supreme Court, Appellate Term,

March, 1899.)

1. Lease — Action for rent — Breach of a condition subsequent to furnish power is not a bar.

Performance by the landlord of his covenant that he will furnish his tenant a certain amount of steam power “ for the purposes of her business ” is not a condition precedent to his right to sue for rent payable monthly in advance, on the first day of each month.

2. Same — Unnecessary allegations of the complaint need not be proved — Affirmative of the issue.

Where the tenant does not deny an allegation of the complaint that she has neglected and refused to pay the rent in advance, the landlord need not, in order to maintain his action, prove his unnecessary allegations that he has kept all the conditions of the lease on his part and that a sum stated is due him; and where the tenant denies these latter allegations on information and belief and also sets up a constructive eviction, the only issue presented by the pleadings is the eviction, on which question the defendant holds the affirmative of the issue and has a right to open and close the case.

*3.*Same — Breach by furnishing an uneven power to the tenant’s machinery — Abandonment.

Where premises are let in writing to a tenant “for the purposes of her business ” and that business requires an uniform power securable only by the uniform rotation of the main shaft of her-*696machinery, the furnishing of an uneven power, although exceeding the horse power convenanted for in the lease, is a breach of the landlord’s covenant, which, taken in connection with the breach of another covenant to furnish the tenant with “ so much heat as shall at all times be ” required in her drying room, justifies her in removing from the premises before the end of the term.

4. Same — Constuction — Oral evidence as to the character of a tenant’s business.

Where premises are let to a tenant “ for the purposes of her business ”, oral evidence is admissible to show the character of the business and its requirements of an uniform power from Its machinery.

5. Witness — Contradicting former testimony.

Proof that a witness testified differently on a former trial cannot be made by the cape on appeal and can only be shown by the minutes of the stenographer, supported by his oath as a witness.

Trenkmann v. Schneider, 23 Misc. Rep. 336, affirmed.

Reargument of an appeal by the plaintiff from a judgment of the General Term of the City Court of New York, affirming a judgment entered in the defendant’s favor upon the verdict of a jury. The decision on the former hearing is reported in 23 Misc. Rep. 336.

The opinion sufficiently states the facts so far as they are material.

Edward S. Clinch, for appellant.

Theodore Sutro, for respondent.'.

Giegerich, J.

"Upon the original argument of the appeal, owing to the peculiar wording of the answer and "because of the admission by defendant’s counsel upon the trial that the rent in suit had not been paid, we were misled to the assumption that the defendant had controverted the allegations of the complaint that she had neglected and refused to pay the rent sought to he recovered in this action, when in point of fact failure to deny it operated as a tacit admission. Code Civ. Pro., § 522. The defendant’s breach being thus admitted, it is clear that the decision heretofore announced should not stand unless the answer contains a denial *697of a material allegation of the complaint, in which are substantially set forth (1) the plaintiff’s ownership of the buildings in question; (2) the lease of the demised premises by the plaintiff to the defendant for three years and two months, from the 1st day of February, 1891, at a yearly rental of $2,500, payable monthly in advance; (3) the defendant’s covenant to pay the rent reserved and her entry into possession of the demised premises, and following the exact verbiage; (4) “ that the plaintiff has kept all the conditions of said agreement on his part to be performed; ” (5) “ that the defendant has neglected and refused to pay the rent which became due and payable on the first days of May, June and July, 1893, respectively, and there is now due and owing to the plaintiff therefor the sum of $625, with interest on $208.33 from May 1, 1893, on $208.33 from June 1, 1893, and on $208.33 from July 1, 1893.”

The defendant by her answer denies upon information and belief (1) “ that the said plaintiff has kept all the conditions of the agreement referred to in said complaint on his part to be performed, as is alleged in the fourth paragraph of said complaint,” or (2) “ that there is now due and owing to the plaintiff, as is alleged in the fifth paragraph of said complaint, the sum of $625, the rent of the premises referred to in said complaint for the months of May, June and July, 1893, with interest thereon, as is claimed in the said fifth paragraph, or that there is due and owing to said plaintiff any sum whatever for rent or otherwise,” and, in addition, sets tip (3) a constructive eviction by reason of the plaintiff’s failure to supply steam heat and steam power, covenanted for in the lease.

It will be seen that tire averments so controverted relate to the performance by the plaintiff of the conditions of the lease and to the amount claimed to be due. It is clear both upon reason and authority, that these allegations were not essential to the plaintiff’s cause of action, and denial of them by the defendant did not necessitate their proof by plaintiff. By the terms of the lease the rent was payable “in advance on the first day of each month,” and consequently plaintiff’s right thereunder was absolute upon the arrival of such monthly period, and, notwithstanding that he had covenanted to do certain things thereafter, their performance was not a condition precedent to payment. In 2 Parsons on Contracts (8th ed.), p. 677, the rule is thus stated: “If money is to be paid on a day certain, in consideration of a thing to be performed *698at an. earlier day, the performance of this thing is a condition precedent to the payment, and if the money is to be paid in instalments, some before a thing is" to be done, and some when it is done, the doing of the thing is not a condition precedent to the former payments, bnt is to the latter. And if there is a day for the payment of the money, and this comes before the day fixed for the doing of the thing, or before the time when the thing, from its nature, can be performed, then the payment is at all events obligatory, and an action may be brought for it independently of the act to be done.”

The foregoing principles were applied in Hurliman v. Seckendorf, 10 Misc. Rep. 549, where precisely the same question as the one under consideration arose, and Osborne, J., speaking for the court, said (p. 550): “ That the lessor had-a right to commence suit to recover the month’s rent on the second day of the month, if not paid, cannot be disputed, and the lessees could not be heard to allege as ground of defense to such -an action that the lessor was to furnish heat, steam power, etc., throughout the month, and that they should not be compelled to pay their rent for that month until they first knew whether the lessor would perform his covenant. The plain answer to such a contention would be that the lessees had covenanted to pay their rent in advance on the first of each month; that by so doing they had precluded themselves from requiring the performance of any conditions precedent to the payment of the rent, and they would be remanded to their action for damages for any breach of the lessor’s covenants. -x- * There is no valid foundation for plaintiff’s contention that he was bound to prove, as a part of his case, that he had performed all his covenants up to the time that the September rent became due. It was not necessary to allege his performance or nonperformance of anything that had gone before in order to properly plead his cause of action; that rested on the breach of defendants’ covenant to pay the September rent on the first day of that month, and, even if he saw fit to allege such performance, it was not essential to his cause of action, and, consequently, he was riot bound to produce evidence to sustain such allegation.”

A further illustration of these principles is furnished by the decision in the case of Murray v. N. Y. Life Ins. Co., 85 N. Y. 236, which was an action upon two policies of insurance, each containing the following provision: “If the person whose life is hereby insured shall * * * die in, or in *699consequence of a duel, or of the violation of'the laws of any nation, State or province, * * * then, and in every such case, this policy shall be null and void.” The complaint there alleged, among other things, that the death of the insured was not caused by the commission by him of any act that could be construed as within the inhibited provisions of the policies. Held, by Hiller, J. (p. 239), that this allegation was not required, and all that was essential to make out a cause of action was a statement of the contract, the death of the assured and the failure to pay as provided. This being the state of the pleadings, the affirmative of the issue upon the trial was said to be with the defendant. The allegation with respect to the amount was, therefore, immaterial, it being nothing more than the statement of a legal conclusion deduced from averred facts. Drake v. Cockroft, 4 E. D. Smith, 34, 36; Emery v. Baltz, *94*N. Y. 411; Conselyea v. Swift, 103 id. 604; Lamb v. Hirschberg, 1 Misc. Rep. 108; 12 Ency. Pl. *&*Pr. 1042; Pom. Code Pl., § 530.

It thus appears that neither of the allegations of the complaint so denied by the answer were essential to the maintenance of the plaintiffs cause of action, and consequently such denials presented no issue of a material fact. It is thus apparent that even had the defendant introduced no proof upon the trial, the plaintiff would have been entitled to a direction in his favor without being first required to aver or prove the matters so denied. Hence, the defendant had the burden of proof upon the only issue raised by the answer, namely, the affirmative defense adverted to, and the right to open and close the case (Millerd v. Thorn, 56 N. Y. 402; Murray v. N. Y. Life Ins. Co., *supra),*and the trial justice properly accorded her this right.

In Millerd v. Thorn, supra, the complaint alleged the partnership of the plaintiffs, and the sale and delivery by them of certain goods. The defendant Thorn, who alone defended, denied the allegation of partnership, but admitted the purchase of the goods as alleged, and then set up an affirmative defense. Held, that denial of the partnership was immaterial, as if the affirmative defense failed, the plaintiffs.were entitled to judgment, whether partners ■or not, and that the defendants had the affirmative and the right to open and close the case.

While the admission upon the trial of the nonpayment of the rent in suit, in connection with the stipulation as to the sum total of the plaintiff’s claim, with interest, may have been mis*700leading, yet it was wholly unnecessary in view of the fact that the allegation had already been practically admitted by the defendant’s failure to deny it. Therefore it was immaterial and did not affect the defendant’s right to the affirmative of the issue. These views entail a consideration of other points raised upon this appeal.

According to the lease the plaintiff let to the defendant the premises in question “ for the purposes of her business * * * with steam power equal to ten horse power ” and the former thereby agreed to furnish to the drying-room *“*so much heat as shall at all times be required, the steam to be furnished by means of a one and one-half inch pipe, extending from the boiler in said premises, to said drying-room,” and, further, to furnish sufficient steam for the whole of the demised premises.

The plaintiff’s insistence with respect to the clause pertaining to the furnishing of steam power, is that if he furnished at least ten horse power, even though considerably in excess thereof, he did all he was required to do by the terms of the lease. Such, however, in our opinion, was not the intention of the parties litigant, when the lease was executed. The purposes of the defendant’s business, according to the undisputed testimony of the witnesses called by the defendant, clearly required uniform power, which could be secured, so far as shown, only by a uniform rate of rotation of the main shaft, .and if the power furnished by the plaintiff materially exceeded or fell short of the stipulated quantity, then, obviously, there was a failure of performance of said clause of the lease. The proof, in our judgment, amply supports the finding of the jury, as is assumed from their verdict, that the plaintiff failed in a very material degree to conform to the said requirement.

The plaintiff argues that the jury were misled by the testimony adduced regarding the effect upon the movement of the defendant’s machinery, which resulted from the failure to supply uniform power, but as such failure constituted a breach of the plaintiff’s contract, there was no reversible error in allowing the consequences of such breach to be shown.

The plaintiff urges that error is predicable upon the admission of testimony respecting the character of the defendant’s business and the requirements thereof, so far as the machinery used therein is concerned, but, as seen, the premises in question were let to the latter “ for the purposes of her business,” and hence the *701court below was justified in resorting to oral evidence upon these subjects for the purpose of ascertaining and explaining the intention of the parties.

The plaintiff insists that it was not competent for the defendant to show a failure to supply steam power or heat during December, 1892, January, 1893, and February, 1893, as a justification for her removal from the demised premises in the latter part of April, 1893. We think, however, such testimony was clearly admissible under the authorities. Thalheimer v. Lempert, 17 N. Y. St. Repr. 346; Tallman v. Murphy, 120 N. Y. 345; Tallman v. Earle, 3 Misc. Rep. 76.

There was ample evidence adduced to sustain the finding that the plaintiff failed to furnish, as required by the terms of the covenant on his part, “ so much heat as shall at all times be required ” in her drying-room, and this considered in connection with the fact, as found, that plaintiff also failed to supply a uniform power, the defendant was justified in removing from the demised premises before the expiration of the said term. Koehler v. Scheider, 15 Daly, 198; Lawrence v. Mycenian Marble Co., 1 Misc. Rep. 105, 106, and citations; 2 McAdam L. & T. Supp. (2d ed.), § 212.

Frederick C. Henderson, upon being recalled, as a witness, on behalf of the defendant, testified: “ Q. Did you testify in the last trial as follows: ‘ It sometimes happened that Mrs. Schneider’s belts slipped off the pulleys, and that Mrs. Schneider or Mr. Schneider called upon Mr. Trenkmann to shut down because the belts had slipped off, and when Mr. Trenkmann was thus called upon he did shut down. One cause of the slipping of the belts off the pulley was the slackness of Mrs. Schneider’s belt.’ Did you so testify? A. I don’t remember. Q. If you did so testify, was your testimony true? A. It was not. Plaintiff’s counsel: I now offer in evidence that part of his testimony at fol. 145, which I have read.”

This was objected to by the defendant; the objection was sustained and the plaintiff noted an exception.

While the plaintiff had a legal right, as claimed, to show that the testimony of the witness on the former trial was inconsistent with his testimony given upon the last trial, yet he could do so only by competent proof. The case on appeal, to which the offer is assumed to have referred, was not evidence of the facts therein contained. These could only be shown by a transcript of the *702minutes of the stenographer, supported by his oath upon the stand. As the objection was a general one, and a ground in fact existed for the exclusion, the ruling is to be upheld. Tooley v. Bacon, 70 N. Y. 34, 37; Quinby v. Strauss, 90 id. 664; McIlhargy v. Chambers, 117 id. 532, 542; Baylies Tr. Pr. 202.

With respect to the plaintiff’s exceptions to the charge and refusals at his request, we axe of the opinion that none of them present sufficient ground for reversal. The error which, it is claimed, the court committed in declining to charge plaintiff’s first request, was corrected by the charge which was made immediately thereafter of plaintiff’s second request.

Several other exceptions are referred to in the appellant’s brief, to which we have given attention, but in our opinion, none of them are of sufficient importance to call for a reversal, and consequently the judgment should be affirmed, with costs.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment affirmed, with costs.