#### Henry Grauel, Resp’t, *v.*Mary Soeller, App’lt.

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

*Filed May 18, 1889.)*

1. Landlord and tenant—Lease.

Defendant leased to plaintiff a hotel, intending to reserve a barber shop, which was a part of the hotel, and which was not expressly reserved, and which plaintiff supposed was included in the lease. *Meld,*that the lease included the shop, and that -an action to recover damages for defendant's breach of her covenant for peaceable possession, in leasing the shop to a, third person, could be maintained.

2. Same—Evidence.

i Evidence that the barber shop was necessary to the hotel was proper.

3. Same—Pleading.

The complaint alleged that the defendant rented the premises to the plaintiff at a designated rent, and without plaintiff’s permission rented out a portion of it to a third party as her tenant, and demanded damages for the breach. The answer denied the leasing of the shop, and asked for a reformation of the contract to make it express the agreement of the parties. *Held,*that the form of the action was not objectionable.

Appeal taken by the defendant from a judgment entered in favor of the plaintiff for the sum of $95 damages and $104. §0 costs, entered iipon a verdict of a jury rendered at Kings county circuit on the 28th day of November, 1888, held by Hon. Willard Bartlett, justice of the supreme court, in action brought by the plaintiff to recover damages against the defendant for an alleged entry upon and eviction by the defendant of the plaintiff from a portion of a hotel situated at Sheepshead bay, near Coney island, Kings county, which the plaintiff alleged in his complaint was leased by the defendant to the plaintiff.

The answer of defendant alleged that the structure in dispute was not a portion of the hotel leased to the plaintiff, and that if it was held that the language in the lease included it, that it was included by mutual mistake, and the defendant prayed that the lease might be- reformed so as to exclude it.

*Carpenter &*Roderick, for resp’t; *Mary Soeller,*for app’lt.

Barnard, P.

J.—On the 19th day of January, 1887, the defendant gave a written lease to the plaintiff of premises described therein as follows:

“All that certain house and lot known as the “Island View Hotel,” for the term of five years from the 1st of April, 1887. The hotel building is a double house with a veranda in front, and the veranda roof is extended at the sides so as to cover a room, which is the barber’s shop, at one end of the house, and at the other end to cover a room used as a billiard room. The controversy is about the barber shop. The proof was conflicting whether the barber shop was reserved when the lease was given.

The jury have found that it was not expressly reserved, *279but that the landlord intended to reserve it, and the tenant supposed he got it, and that in point of fact the barber’s shop is part of the “Island View Hotel.”

The reception of the fact that a barber’s shop was necessary to the hotel was proper. The question was whether the plaintiff hired the barber’s shop. The refusal of the court to permit the defendant to testify to her instructions given to Mr. Burgess in regard to the lease, was subsequently cured by admitting rejected testimony. She testified that she told him that the lease was to be for five years, payment in three terms, without the barber shop. The case became then a simple one. There was no reservation outside of the lease. ■ The lease included the barber shop by its description of the property, and the defendant didn’t intend to give a lease of the barber shop. There was no mutual mistake. The contract did not express the defendant’s view of its terms. This is no defense to the contract. *Jackson*v. *Andrews,*59 N. Y., 244.

The form of the action is not objectionable. The facts are stated. The averment is that the defendant rented premises to plaintiff at a designated rent, and without plaintiff’s permission rented out a portion of it to a third party, as her tenant.' The answer denied the leasing of the barber shop, and asked a reformation of the contract, to make it express the agreement between the parties. There was no error in refusing to charge upon the effect of the covenant that the lessee should not underlet the premises or any part thereof, as bearing upon the disputed question of fact whether the barber shop was reserved or not.

We think the trial, judge was right, and that it had no bearing on the case.

The judgment should, therefore, be affirmed, with costs.

All concur.