William Tumbridge, Respondent, v. Cassius H. Read et al., Appellants

William Tumbridge, Respondent, v. Cassius H. Read et al., Appellants. (Argued January 23, 1888; decided April 17, 1888.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 15, 1885, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought to recover rent alleged to be due under a lease from plaintiff to defendants of certain premises in the city of Hew York. The answer admitted the making of the lease, but alleged breach'of covenants on the part of plaintiff to make certain alterations and improvements before the beginning of the term, and, in consequence, a refusal of the plaintiff to take possession and occupy the'premises. The court here held (Andrews and Earl, JJ., dissenting), that the evidence showed indisputably a failure of the plaintiff to perform his covenants, and that there had been no evidence of performance on the part of the defendants, and, therefore, that a denial of a motion to dismiss the complaint was error. Robert G. Ingersoll and Christopher Fine for appellant Brewster Kissam for respondent. [MAJORITY — Peckham, J.,] Peckham, J., reads for reversal and new trial; Daneorth and Finch, JJ., concur; Ruger, Ch. J., concurs in result; Earl, J., reads for affirmance; Andrews, J., concurs. Judgment reversed.