The New York herald., 1869-04-15
MARINE toUaI-fAaT |.

Important Action for Rent--Eviction, Surren.
der and Acceplance-Couuter Claim for
Before Judge Curtis
Rosa Goldsmith rs. jacob Sc1oeJ,hoE--ThIs was an
action to recover for rent claimed 10 be due
tain premises leased by plaintiff to defendant The
case was important on account OF the issues raised
i the pleadings, and the claim also set up by de-
fendant ior damages resulting, rs alleged from the
action OF the plaintiff The points turned upon evic
ton and the surrender OF the premises by defendant
aud acceptance of the by p.aintl1. The testl-
mony In the case having closed,
Judge Curtis charged the jury on the law points
submitted as follows:--
GENTLEMEN or TIE JuHY-Thc first question TO
which call your attention Ia was it or was H not
fact that the basement spoken OF IL this action was
to be considered q part AMI portion of TIE premises
leased To the dciondaptS Air. Goidsantb's testimony
that the basement IL not 10 be cOnsidcrcd OF
the premises. lg N contndcd on his behalf that he
IL corroborated TO some extent by somc OF the Wit
ncsscs he called IN that regard Tue defendant
goes upon the stand and swears tnaS was distinctly
made part OF the agreement that the basen,D was
TO DO consesela part oi sne bring Now, genibmen,
that rs entirely question OF fact for you To pass
upon. As have had occasion TO tell YOU beforr,
now repeat that a questions OF fact are peculiarly
winch side has given the correct theory, supported
by the proof, upon that point II you believe tac
theory OF the plaintiff, then that basement was not n
part Of the premises originally hlrod II you believe
the statement OF SchOenhoif and the theory OF the
defence, thai basement was part OF tue pletnsss
hired, and Schoenno was entitled TO the use, occu-
parcy and possession thereof. Now the next question
that pressnss seii ~ yon Is the Guessijn OF evctol
IL you should come to the conclusion that the base
ment part OF tue premises hrei, was the do
tendani eyicted from those prcnsesS ilis testimony
u that certain machine the property Of the plain
tilr was placed aud allowed TO remain within
tbosc premises and MAT the basement as occupied
and used ~ the plaintiff or her agenis. ! chasgs a
you as matter oi law that II You are satisfied tnat
that basement was portion OF the prem ses hircu
by schocnho from the planru. tnen he was ontltiei
ts.l lllA Ist.t
evicted by wrongfu act OF tho palntih frotn those
premises without h,s consent tnen thc plaintlf
cannot recover. The same rtlo that applies 10 me
question | first raised apples to this. It is en-
tirely question OF fact 10 is for you 10
say which side you will believe that point. toa
viii not fofget That 1t IL stouty urged by tue pan-
til, both through hcr counsel ana ~ Mr. Godssnth,
the plaintins agent upon the witness stanI ,llt
lcasef and that Il had never been the habit or Gus.
tom OF Mrs Goldsmith 10 include lhat basement ~
the preiniaes when leased rented. It's oontcndei
by the defendant here that there was surrender OF
the premises and an acceptance thcreOL Ihe ue-
iendant saws that al tho time be left these prsmse
or on or about that time, he surieudcied these
promises TO plaintiff aad tn,t tnere was an &C.
cepiaace on the PARA oi tue pn 9i snsn ancg sarsa
should cease. IL you are satisaol Oi
that fact irom ali the evidence, then
the plaint1 cannot recover. The Defendant state't
upon tue stand, II remember CORRECTLY, taat nc
gave verbal notice 10 Mr.. GoldsMitn, tue agent Oi
the plaintiff aud also seut hun written nosiee anu anu
you have heard his testimony ana tue cVissi us"Vn
vi his counsel with regard 10 the acccqtahce oi hf
Goldsmith. AIR. Goldsmith. on the toa.faiy, states
20 you most positively that, wANtng cnlicJ 'ho
question whether there was surrender III nlW of
not on the part Of the defendant, taere was no ac-
ceptaDce on his part, and he held aud oocs now
hold the defendant {, hs agrec.uent. | niiSh az
well say to you uere what sad ,he otner u'y WIN
regard TO the crcdlbity OF Witnessed ~ IS lioe ios
the Court at any time to intimate Wii"e nitnyss
snaN be believed or what witness sdai oe US
believed. 10 Ia entirely a question LOT yJa 70 p.sss
upon The defendant IN one part OF nis ais" ns
set up what ~ known uadcr our code oi Prooodufe
a. q counter claim. lie seeks 10 recover uaiIaaSs
aglnst the paiatf for the injury uohe W his hoVs
you that whatever conclusion you nihy auNo ~
vita rVgard the rgns oi the pihutH 10 iecovc, 'n
tas action you nut Disregard ING cO.lbe.Viah,,.
and In no nYrnt Ind ludguent against tle pallih