#### Cornelius Fonda, App’lt, *v.*Edward N. Lape *et al.,*Resp’ts.

*(.Supreme Court, General Term, Third Tepm'tment,*

*Filed Februmy 4, 1890.)*

1. Lease—Defense.

In an action upon a lease from plaintiff to defendants it appeared that when defendants went into occupation, a former tenant of plaintiff was using a part of the premises, a horn, but his occupation was to cease when*328ever defendants wished it. Defendants permitted him to continue without payment. In an action for the rent, *Held,*that defendants could not charge plaintiff with the value of such tenant’s occupation.

2. Same—Counterclaim—False representations.

As an inducement to defendants to rent the premises, plaintiff stated “ that enough horses came over to the horn from the Kensington hotel to more than fill it, let alone comers and goers.” *Held,*that such a representation was material, and the jury having found it false, .defendants were entitled to damages.

8. Same—Evidence.

A former lessee of the barn testified that he considered it worth $275 per annum, and considered it worth that to himself. *Held,*that he might be asked on cross-examination whether he did not lose on the barn in a certain year. Such a question, while it might not be proper on the question of value, was competent to show that the barn was not worth to the witness what he stated.

*4.*Same.

Plaintiff was asked, under objection, whether he did not own certain other valuable property. *Held,*that as the probable object of this question •was to show that the plaintiff was a rich man, and so prejudice the jury in favor of the defendant, a poor man, the evidence was improper.

Appeal from a judgment entered upon a verdict in favor of the defendants, for $140, at the Saratoga circuit.

*B. T.*Brackett, for app’lt; *Jesse Stiles,*for resp’ts.

Land on, J.

The action is to recover seventy-five dollars, the balance of the rent reserved in a lease under seal, from plaintiff to defendants, of a barn in Saratoga Springs, for one year from May 1, 1888, at the rent of $275.

The barn was a large one, designed for the stabling of horses and the storage of vehicles for customers. The defendants admit occupation under the lease and non-payment of the balance of rent claimed, but allege, by way of defenses and counterclaim, that the plaintiff occupied a portion of the bam, and that by false representations as to its custom and good will, induced them to enter into the lease to their damage. The defendants recovered a verdict of $140, and the plaintiff appeals.

*First.*At the time of the execution of the lease one Ward had his horse, wagon, harness and some feed for his horse in the barn, under an arrangement with the plaintiff to pay him twenty-five dollars a year, but to move out if plaintiff let the barn.

Plaintiff stated this to defendants and also that Ward would move out whenever they requested, and that he would provide for him in another barn of his own. Plaintiff asked defendants to let Ward stay until they wanted him to move out. Defendants assented to this. Ward told defendants he would move out whenever they requested him. They did. not request him to move out, and he stayed there during the year. The plaintiff rendered no bill to Ward for this occupation, and Ward paid him nothing. The defendants obtained from Ward ten dollars, upon request, as a loan.

The court, under the exception of the plaintiff, instructed the jury that they might charge the plaintiff with the value of the use and occupation by Ward. This was error. As the defendants consented to Ms remaining, his stay cast no charge upon the *329plaintiff, since there was no agreement that the plaintiff should, pay for Ward’s accommodation. The plaintiff gave defendants complete control of the bam, and hired no part of it from them for Ward’s accommodation or for his own. The provision for Ward’s stay was designed to be merely temporary, and if Ward and the defendants changed it to a permanent one, or suffered it to become so, that was a matter between them, as to which the plaintiff was neither principal nor surety.

*Second.*The false representations relied upon were as follows: Plaintiff in negotiating with defendants for the lease represented that the barn had the patronage of the Kensington hotel, and that he had a contract with Mr. Grening, the proprieter of the hotel to the effect that all the private conveyances that came to his hotel should be sent to the barn, and that enough horses came over to the barn from the Kensington hotel to more than fill it, “let alone comers and goers.” The facts proved were that for four previous years the barn had had the patronage of the Kensington hotel, Mr. Grening, the proprietor, having been the lessee of it for the previous year, and his predecessors for the three years previous to the last having leased it. The plaintiff had had a conversation with Mr. Grening respecting a continuance of the patronage and Mr. Grening had told plaintiff that whatever trade he could influence in favor of his barn he should be willing to 'send there and that he would say so to his clerks. Beyond this there was no arrangement to send customers there. Testimony was given tending to show that the custom of the barn from the Kensington hotel had not been so large as plaintiff represented it to have been. It was very small during defendants’ tenancy. We do not think fraud can be predicated of the plaintiff’s characterization as a contract of the understanding existing between him and Grening respecting the custom of the Kensington hotel

The plaintiff denied in his testimony that he represented that he had a contract, and testified that he truly stated to defendants the substance of the conversation between him and Grening. But accepting the defendants’ version as true we do not think that the plaintiff is chargeable with actionable fraud in representing the understanding with Grening to be a contract, for the reason that the fair and reasonable meaning that the defendants ought to put upon such a representation was that, by the favor of the proprietor of the hotel, the barn had and would continue to have the patronage of the hotel. This was true as to the past, and continued to be true under the defendants' tenancy, though not to the extent expected.

If the defendants desired to know whether this custom was secured by a formal contract, it seems reasonable that they should have inquired in that respect. Indeed, the testimony tends strongly to support the inference that there was a contract between plaintiff and Grening, the plaintiff promising to receive and take care of such horses as Grening should send him, and Grening at the same time promising to send such as came under his care at his hotel, each promise being in consideration of the other. But, as *330suming that it lacked the precision necessary to make it a contract, it was such an understanding as a non-professional man might innocently speak of as a contract.

*Third.*The representation, however, in respect to the extent of the custom from the Kensington hotel was material, and the jury have found it to be false. It was that “ enough horses came over to the barn from the Kensington hotel to more than fill it, let alone comers and goers.’’ The case of *Smith*v. Countryman, 30 N. Y., 673, quotes with approval this language of Lord Abinger, in *Moens*v. Heyworth, 10 Mees. & Welsby, 147: “In the case of a contract for the sale of a public house, if the seller represents by mistake that the house realized more than in fact it did, he would be defrauding the purchaser, and deceiving him, but that might arise from his not having kept proper books, or from non-attentian to his affairs, yet as soon as the other party discovers it, an action may be maintained for the loss consequent upon such misrepresentation, inasmuch as he was thereby induced to give more than the house was worth.” *Simar*v. *Canaday,*53 N. Y., 298, 306.

*Fourth.*The defendants, holding the. affirmative of the issues, called witnesses to show how much the use of the barn would have been worth with the Kensington custom if as represented, and how much it was worth as it actually was. The plaintiff, in answer to this testimony, called Grening, the proprietor of the Kensington hotel, who testified that he had hired the barn for the year previous to May 1, 1888, at the refit of $275, and considered it worth that to him. On cross-examination, he was asked: “Did you lose on the rent of that barn in the year 1887 ? ” The plaintiff objected as improper, and not any evidence to show the value of the barn, and the court overruled the objection, and the witness answered “yes.” He was next asked, under the same objection and ruling: “Do you know how much? ” Ans. “No; in my best judgment I lost $100.” It maybe that this testimony was not proper to prove the value of the use of the bam, since Grening’s loss or gain might depend more upon his management than upon the reasonable value of the use of the barn, but since he had testified upon his direct examination that he considered it worth $275 to him, it was competent for the defendants to show upon cross-examination that it was not really worth that to him, and the testimony objected to tended to show that, and was, therefore, not improperly received.

*Fifth.*The plaintiff, upon cross-examination, was asked by the defendants, “You are the proprietor of the Fonda block?” This was objected to as immaterial; the objection was overruled and the answer was “Yes.” The testimony was absolutely irrelevant to any issue in the case, or to any other testimony. Its significance consisted in suggesting the plaintiffs’ wealth, and the contrast between it and the defendant’s poverty, which had been suggested by testimony given by them. We can scarcely hope to eliminate from jury trials every feature of pettifogging, and we probably should hesitate to reverse a judgment because of such *331an error, which in some cases - might be regarded as trivial, if in other respects the result were satisfactory.

But it is probable that this evidence was used to the prejudice of the plaintiff. He had hired his barn to the defendants for $275 rent, the same that he had previously received from others. It appears from the case that the principal custom of such a barn in Saratoga Springs is expected during the summer season. After the business of the season was over the rent fell due and $200 were paid. Suit having been brought for the balance, these defenses and counterclaim were interposed and a verdict of $140 recovered thereon. Practically the rent of $275 was thus reduced to sixty dollars. This seems to us to indicate passion or prejudice, and we ought not therefore to regard as trivial the error which could have served no other purpose than to influence passion or excite prejudice. *Myers*v. *Malcolm,*6 Hill, 292; *Moody*v. *Osgood,*50 Barb., 628.

Judgment reversed, new trial granted, costs to abide the event.

Learned, P. J., concurs; Fish, J., takes no part.