The New York herald., 1869-04-15
ORK HERALD THURSDAY, l5 6s-QUADRUPLE SHEET

for the DESCENDANT for any sum. And believe that
construction or the Court Is fully fortified In the
opinion OF Mr.. Justice Grover, OF the Court OF APP
peas-probably one OF the most eminent jursts In
tne stase or country-when he says, In speaking OF
case almost analogous to this, and which, think, Is
cited on the behalf OF the counsel for the plantf:
HIS Honor then read the decision referred to-.
nave been requested by the counsel for plaintiff,
and also by the counsel for the defendant to Instruct
you upon certain propositions which they nave sub
mtted as law in this case. Tie nrst proposition OF
the counsel for palntin s:--'To constitute eyIc'
tion without physical custer the tenant must have
abandoned the demised premises in consequence OF
acts O MS landlord so Illegal and monstrous as 10
be equivalent To absolute physical ousrer." The
spirit and the sentiment that proposition charge
10 you as law. In other words, charge you That N
order to entitle the defendant to recover here ne
must have been eylcied and Ousted from those pre-
mses either by what rs known as physical custer,
or the premises must have becoine so untenana6ie
during his possession that II was impossible Tor him
10 remain there with safety to MS health and with
prosperity 10 his business. Second. "Without ar
frmance by q landlord OF the condition OF premises
proposed to be hired in q matter which, by ordinary
dilgence, the tenant may OBTAIN correct iniorina-
tIon are not such an imposition az 10 impose upon
the landlord the obligation OF warranty. re-
presentation that building is good strong and sub
stantial and lit for hater5 business, Is Ifotea war
ranty that the building il not eaky.n | charge
you. fou remember the circumstances OF this par
Ssn sicuiar case. | think tine drss interview That
Schoenhof had-and II | am In error you Will
correct me--was with the of the PLAINTIFF
but that the understanding and arrangement
was with the husband OF the plalntiH, Mr. sampson.
Goldsmith You will remember that Schoenhof told
you the conversation that took place between hun
and the son; but II my memory be correct, he stated
either by himself or by Mr. Sampson Goldsmith with
regard TO the condition OF the promises at the tine
he made the hiring. Third-sAs to The fact that
there was no express implied warranty that the
premises should continue to be tenantabe, the ten
ant Is bound 10 prove the fraud, II alleged, and that
tile alleged dampness was created by any wrongful
act OF the landord.' That is undoubtedly true.
The m mere mas mas tsar an aae
ment 10 hire tAese premises to the defendant and
that he took possession under and by tat agreement
There ~ no question that this rentls due aad should
be PAID II the defendant has not made out hls case
alhraStiyely before you. Now. chargcy0u this,
that the defendant, in order TO recover against the
that his theory as to This testimeny Is correct t IL
not for The pldniIl TO establish by prcponderance
Of PROOF That the theory VI the defendant Is not
rect F0urtn--In an action for 'rent by the land
lord the defendant cannot set up as countercaim
mere ;respass OF the landlord, such trespas5 Is
cause OF action not arising out OF the same
contract transaction set forta In the cont
plaint as the foundation OF the plaintiii's
CLAIM nor connected with the subject OF the action.
cnarge that as law. In other words Charge you
to disregard TINS countercaim. The learned counsel
for the defendant requests the Court TO charge.
First--'if the jury find that Sch0enhof stated 10
Coldsinlth the purposes FOR Which he wished to hire
the premiscs ana Jlat he needed dry premises and
that Goldsmith represented The premises as dry
when ne knew that they were not dry, and that de-
fendaIlG abandoned the premises because thoy we're
not dry then che Jury are 20 fad FOR the dciendant.n
Will charge thai, with she modification thai II
Schoenhof abandoned the premises because they
were not ury a,i1 o,SSo ,ney ,,ey unseais
eoio ali .Ha i,,rv find mar The r,rar,isa nsca,a
oeconu "a .o LII yta ~ sr ,ssr ca, @ r. a,, 49, ti
OF wetc unse.s I On aea,nt @ ~ t,,;. si ,,n s wy ~"
tenaIitabie, the plantn cannot recover" charge
that as law. Now, with regard 10 the question OF
untenailape ylt az or 10. vS ~ ivSgiso 49, .,o @
seatemou. y, par" ot S rsce,v r,e ,13 %
barry ylainrf that tliey were tenantabic You are
70 stty iIoin az, a. ' ~
premises icJ .,,ad mec - ,nara S % 49,, " ~ ~, ~
len and In .fANu "a
pein Vi @ S 1i'm tn NV h' anI thai r. raise '
inrd-n thc Juiy na ssv i"tho .i ,,ep..scn
tatons were nauo " u 'no rn ta' ea' ms,enons
decline to charse tna., g' on eis coafarf cnarge
you tiiis ~, ~ - ~. nv & ..s % ~ * y. ~ +h ,, ~.
Eourti-n ne Jury nru ea. s'a , p mn ,su,ga ~
tie ueeiiuahe 'iS oa s ani a..t naius
TOOK po5s VI .''e m ~ hiS soouS
therein anu ea noe give vaoA ,9 & eneieoi'
the pal.i salno ~ w WI ~, otse ',al,
win tne nlodinca cauo ~ uc p.uVeu us Soous III ts
paseiiehs Wieous 'hc 0oiase' ip,.so oi ulSce' Vi
Tue uelendih., auu - nc entes gu ii,o possessioi "
Una, pasehicns o e ',''e o se s uu
fendait tici the pldihsA sa'.nos lecosei you are
satishe1 un, ehe ~, w. 49,. a.. uaeu III so
Original mrlns. fnsI- ln .ia, eVent uis ae-
lcndant shosid Tecoser rom ihe paiuiu tne
value OF the b:ncinens Tor tnree !nonths."
decline 70 charse snst. LOU wv i.Aoto ee cS AZ,
ter clalui. sNni- u uno @ Jus nau ui.,s ec uc,enu-
ant surrehdered possession vi .ic prsahes anu tie
piainlln accepted the surrender then they are 70
mo LOT the uc.enuae' inv "eoo.anvo y, .ic NY
ana all cncuistanees constitute a earienuer % she
PREMISES" VIII ca.i ~ ", .,As IA you aIe sa.snel
mere was surfemaer am a' m1c.paance, p, .nen you
must uuu iof uac cueiesiuans, pu. w.e'ei snels "hs
surfepoor OF accepsoo a @ of ho' 70 nues.aon s oi
laet Liht yva uie w paa1 p - ~ ny, ny. los .l'e
court 70 tep YOU uiicss ~ pSoones pulpapiy iues-
uon Vi Mw, wnas = sui ooi VI o0Sop'-
ance. oevcn',n- wy 'uiJ nnn ."at .ne
piainlih OF nef uten'9 VI peisons "ctius
uhuer nct vl n, VIII nsi n, p, psais5'on IN tyoA "
POSSESSION VI 'io t,e.ison anu oSsupis vhi @ a.e.
,e @ 1oat , - T I,non ~, sa,,s,, % , Y % % ~
PROOF Ill the case tuat curing tne months OF july,