#### Eleazer Ayres, plaintiff and respondent, *vs.*Matthew O’Farrell *et al.*defendants and appellants.

1. In an action to recover the rent of a store, where the defendants, who were the tenants, had set up as a counter-claim, damage to their goods during their occupation, by smoke and soot of a furnace erected by the plaintiff, his servants or agents, in the basement of such premises, the exclusion of evidence offered to prove the items of such damage, and the nature and extent of the injury done to such goods, was held to be erroneous.

2. The case having been sent back for a new trial, on a former appeal, because of the exclusion of similar evidence ; *Held*that the case was *res judicata,*on that question.

8. When a counter-claim is proved, without contradiction, the court should *direct*the jury to assess the defendants’ damages, if requested to do so, instead of leaving any discretion with them, on the subject.

4. Where the judge instructed the jury that as to the question of the defendants’ damages, the testimony fixed it beyond peradventure; and the jury, notwithstanding, rejected the counter-claim and gave the plaintiff a verdict for the amount claimed; *Held*that such verdict was not only against the evidence, but directly against the charge of the judge, and for that reason alone' the judgment should be reversed.

(Before Babbouh, Mohbll and Gaeyih, JJ.)

Heard January 11,1866;

decided February 5,1866.

Appeal from a judgment, and an order denying a motion for a new trial.

The action was to recover the sum of $300, being three months’ rent of a store on Nassau street in the city of New *669York. The complaint alleged the making of a lease to the defendant Matthew O’Farrell for the joint benefit and occupancy of him and the defendant Daniel O’Farrell, who were copartners in trade. That the premises were occupied by the firm until December, 1857, when they made a general assignment of all their partnership property to the defendants Henry O’Farrell and William C. Higgins. That thereupon the assignees and assignors occupied the premises until the end of the term.' The three months’ rent fell due during such joint occupancy.

The defendants answered jointly, admitting all the allegations in the complaint, except the amount of rent claimed to be due, and set up by way of a defense and counter-claim, that during such occupancy the plaintiff erected an oven furnace, or bakery under the store occupied by the defendants, filling said store with smoke and steam, and injuring their goods, and claimed to recover six thousand dollars as damages. The plaintiff replied to the counter-claim, denying each allegation thereof.

The case was tried before Justice McCunn and a jury. The defendants gave some evidence tending to show that during their occupancy of the store, an oven was erected in the basement, by the tenant thereof, the plaintiff being there while it was being done. That the smoke and soot coming from the basement damaged the defendants’ goods, some forty and others fifty and sixty per cent. Two of the defendants, who were examined as witnesses, estimated the damage at from six thousand to six thousand five hundred dollars.

The defendants offered to prove the items of their damage, and also the nature and extent of the damage done to their goods. This evidence was excluded by the justice, and the defendants excepted.

The justice charged the jury that the defendants had the right to set up the counter-claim as a defense, and he charged them that the plaintiff was sufficiently identified with the premises to make him responsible, and it was for the jury to say what damage was done. He then stated to the jury, “ On *670the question of damages, the only evidence is that of the two O’Farrells. Ayres has not contradicted it, and the .rule of law is, that when a witness swears to a fact and is not contradicted, it must have weight with the court and jury. So that as to the question of damages, the testimony in the case fixes it beyond peradventure. It is therefore for you to say whether the plaintiff shall have a verdict or the defendants shall have one.” The jury gave the plaintiff a verdict.

A motion for a new trial was made and denied at special term, and thereupon judgment was entered. The defendants appealed from the judgment and order.

*É. W. Dodge,*for the appellants, defendants.

*A. K. Hadley,*for the respondent, plaintiff.

Monell, J.

The evidence offered by the defendants to prove the nature and extent of the damage to.their property was erroneously excluded. It was the precise evidence needed to establish their counter-claim. This case was sent back for a new trial on a former appeal, because of the exclusion of similar evidence, and the case is therefore *res judicata*on that question.

But the verdict is not only against the evidence, but directly against the charge of the learned justice before whom the case was tried.

The counter-claim was proved, without contradiction, and I think the justice should have *directed*the jury to assess the defendants'7 damages, rather than leave any discretion with them on the subject. He, however, told them that as to the question of damages the testimony fixed it *beyond peradventure.*Tet the jury rejected the counter-claim, and gave the plaintiff a verdict for the amount claimed^

For this reason, if for no other, the judgment and order should be reversed, and a new trial ordered, with costs to the appellants on this appeal to abide the event.

*671Garvin, J.

(after stating the facts as above.) The counterclaim was proved, and without any contradictory evidence was submitted to the jury under an appropriate charge by the court. The parties, by their pleadings, had made the counterclaim a material issue. Without this peculiar answer and issue taken thereon by the plaintiff, it may be very doubtful whether the defendants could have availed themselves of such a defense in this action; and just as doubtful whether the plaintiff could have maintained an action against any of the defendants except Matthew O’Farrell; but upon the issues as framed, and the evidence before the jury without objection and uncontradicted, and without any requests or suggestions to the court to charge the jury from the counsel on either side, we must hold the charge of the court was not in any sense erroneous. The court charged that the testimony as to the question of damages fixed it beyond peradventure. The verdict is directly against the charge of the court, and for this reason there should be a new trial, with costs to abide the event.

Barbour, J. concurred.

New trial granted.