#### Phebe A. Smith, Pl'ff and App’lt, *v.*John MacArthur, Def’t and Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Landlord and tenant—Right to crops—When tenant guilty of TRESPASS.

Where the tenant had vacated the premises under a notice from the landlord, which gave him the right to take the crops when fit to gather, if he paid the rent in arrears, and he afterwards entered upon the land to take the crops without first paying such arrears, the landlord had the right to use the necessary force to put him off the land; and the instruction of the trial judge to the jury that “ if there was a condition as to the crops being removed only in the event of the rent being paid ** * **the defendant is entitled to your verdict,” was not error.

2. Same—What act of landlord does not release tenant from payment OF RENT.

The fact that during the term, the landlord, with the tenant’s consent, had removed the roof and put on a new one, occasioning great inconvenience and discomfort to the tenant, did not release him from the payment of the rent during the time the work was being done, even if more discomfort was occasioned by the repair than1 was expected.

3. Same—Evidence—Competency of.

A letter written by the defendant to a third person concerning the rental of the premises, offered in evidence by the plaintiff as showing the terms of the letting to the plaintiff’s husband, was properly excluded as having no bearing upon the question, as it was subject to the same condition as to the payment of the rent as was the notice given to remove from the premises.

The defendant was the owner of certain premises in Queens county, of which plaintiff’s husband was the tenant until September 28, 1886, when the tenant moved out of the house (leaving the key in the door) under a notice from the landlord. The notice was in these words:

“New York, *August*20, 1886.

“ *Ira Smith:*

“The owner is about to build where I am; therefore I am compelled to require you to remove from my place on or

*712before October 1, 1886. Anything you plant can remain, until ripe, and then you can take it. The fruit I want myself. Respectfully, JOHN Mao ARTHUR.”

The defendant then took possession of the premises.

The plaintiff, who is the wife of the tenant, two days after their removal returned to the premises with her son to gather a portion of the crop, and while the son was digging potatoes, the defendant" ordered him off, saying, as defendant testified, he could not dig potatoes till he paid the two months’ rent which was in arrears. Her son not going when ordered to do so, the defendant took him by the shoulder or arm, and led him about ten feet, when the plaintiff with a pitchfork attempted to defend her son. The defendant seized the pitchfork in her hands and took it from her, and put her off the land, and in doing so the plaintiff claims that defendant injured her) and she instituted this suit to recover damages for the injury.

During the trial, the plaintiff offered in evidence a letter written by defendant to a Mr. Frank, in relation to the premises, dated August 9, 1885, in these words: “I cannot understand why Ira Smith wants,any writings for as long as he stays on my place. If I take it from him, which is not likely to occur for a long time, I certainly will not take any advantage of him. If he wants anything different, tell him to write to me. I have no objection to his planting the portion of. the ground as you say. If I should take the place from him at any time, he can take the crops off when they are ripe.” Which being objected to by defendant was not •admitted in evidence, to which plaintiff excepted. It did not appear that that letter came to the plaintiff’s husband’s notice before the letting of the premises to him.

During the time of the occupancy of the premises, the defendant, with the consent of the tenant, removed the roof from the house and put on a new roof. The plaintiff offered to show that great damage was done to the furniture by the rain coming in while the roof was off, and that the tenant was subjected to great inconvenience and discomfort from the repairing of the property, which was objected toby defendant, and the objection sustained. The trial judge, Hon. Garrett J. Garretson, charged the jury, among other things, that “The chief question which this case presents, is whether Ira Smith, the husband of the plaintiff, * * * the tenant of the defendant had, prior to the 30th of September, 1886, when this affair occurred, vacated unconditionally the premises in question. If you can find from the evidence * * * that Smith vacated these premises and delivered up the possession to Mac Arthur, then MacArthur on coming there was rightfully in possession, and being rightfully in possession he had the right then to order or command any person whom he found upon his premises to depart therefrom, even though it was his former tenant, and although the former tenant may have had some crops still ungathered upon the premises, and if that former tenant * * * refused to depart when requested so to do, *713then the landlord would have the right to exercise so much force, and only so much force as would be necessary to eject him from the premises.” The jury found for the defendant and this appeal was taken.

*J. M. & T. B. Seaman,*for app’lt; *Charles J. Patterson,*for resp’t.

Barnard, P. J.

This was an action for damages for an assault. The jury have found against the claim, and the appeal practically brings up only the correctness of the rulings on the trial. The general facts are not in dispute. The defendant is the owner of certain premises in Queens county, and the plaintiff’s husband was the tenant of the same, under the defendant, until the 28th of September, 1886. On that day the tenant and his family moved out of the house, and the landlord took possession. It was a question on the trial, whether this removal from the house was made with the intent to vacate the whole premises, or only the house, reserving the right to gather the crops then growing.

The rent was two months in arrears, and the removal was in .pursuance of a notice to remove on or before October 1, 1886, which, it seems, the landlord had the right to demand. This notice contained a privilege, that the tenant should have the right to take the crops when fit to gather.

It was again a question, whether this permission was upon the condition that the tenant paid the rent. The parties do not agree on this subject, and the disagreement went to the jury. The letter from the landlord, in respect to the occupation of 1885, has no bearing on this question.

It was subject to the same conditions as to the payment of the rent, as was the notice given to remove from the premises. The proof offered as to the removal of the roof for the purpose of repairs had no importance; both parties admitted that the roof was repaired by consent of the tenant, and, if the surrender was made of the premises, it was good, even if more discomfort was occasioned by the repair than was expected.

The appeal book discloses no error, and the judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.