(57 App. Div. 202.)

SCHWARTZ v. BRUCATO.

(Supreme Court, Appellate Division, Second Department. January 31, 1901.) LANDLORD AND TENANT-ABANDONMENT-RELETTING-BENEFIT OF POSSESSION -LIABILITY OF TENANT.

Defendant's lease for a term ending May 1st contained a condition that, if the premises became vacant during the term, the landlord might relet them as agent of the tenant, and the rent so received should apply on the rent due, the tenant to remain liable for any deficiency. On January 28th defendant abandoned the premises, and on March 2d plaintiff began painting and papering the property for a new tenant, who entered April 13th, on an agreement that his term should begin May 1st, and that he should occupy the premises free until that date. Held, that plaintiff was entitled to recover rent from defendant until April 13th, but not subsequent thereto.

Appeal from municipal court, borough of Brooklyn, Fifth district. Action by Evangeline Schwartz against Nellie Brucato. From a judgment in favor of plaintiff, defendant appeals. Modified.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

Thomas C. T. Crain, for appellant.
W. Russell Osborn, for respondent.

GOODRICH, P. J. The defendant was tenant of premises under a lease the term of which ended on May 1st, rent payable in advance. She left the premises on January 28th, and sent the key to the landlord by a messenger, whom the plaintiff instructed to tell the defendant that he declined to accept the surrender, but would take the key in order to show the premises to any intending tenants. There was evidence as to the condition of the premises from which the court might have held that the defendant was justified in abandoning them. On the other hand, the court could have found that the abandonment was unjustifiable, and the burden in this respect was on the defendant to show justification. The judgment is upon the theory that there was no justification for the surrender of possession. The lease contained a covenant that, if the premises became vacant during the term, the landlord might re-enter and relet them as the agent of the tenant, receiving the rent, and applying any rent received to the expense of reentering and then to the payment of rent due, the tenant remaining liable for any deficiency. The premises remained unoccupied, and the landlord exercised no act inconsistent with his right, under the covenant of the lease, to take possession of the premises when they became vacant by the defendant's leaving them. On March 2d he began some repairs of painting, papering, and plumbing. This was because in the last week of February he made an arrangement to lease the premises to a new tenant, Mr. Patterson, for a term beginning May 1st, under which the latter entered upon the premises on April 13th, occupying them free of rent until May 1st. By the judg ment the court has found that there was no agreement on the part of the landlord accepting the surrender of the premises. The question, therefore, is whether any subsequent acts on his part are to militate against his right to recover rent. The rent being payable in advance 68 N.Y.S.-19

and 102 New York State Reporter

on the 1st day of the month, the defendant was bound to pay the February rent, and also the March rent, prior to March 2d, on which day the landlord began making repairs. MacKellar v. Sigler, 47 How. Prac. 20. The plaintiff, however, cannot have judgment for the rent after April 13th, when Mr. Patterson went into possession. Evidently it was an inducement to or a condition of the lease to Mr. Patterson that he should have the right to occupy the premises from April 13th to May 1st free of rent, but the plaintiff had the benefit of this possession, and exercised dominion over the premises during that period.

The judgment must be modified by deducting 17/30 of a month's rent, and, as modified, affirmed, without costs of this appeal to either party. All concur.

(57 App. Div. 214.)

NELSON V. MASONIC MUT. LIFE ASS'N. (Supreme Court, Appellate Division, Second Department. January 31, 1901.) LIFE INSURANCE POLICY-INSURED'S DEATH-PRESUMPTION-Evidence.

Insured disappeared on August 20, 1897. On that day he invited friends at two different times to go bathing with him, which they declined. This was the last time he was seen. His clothes were found the next day, locked in a bathing pavilion. Among his papers was a check drawn on a bank in which he had no money, and he was in arrears for both house and office rent. His habits were regular, and his domestic relations happy, and he was in good health. The guard at the life line at the bathing place, whose attention was called immediately to the matter, did not see any such person in the water on the day in question. Held insufficient to make out a prima facie case of insured's death. Action by Laura Adelaide Nelson against the Masonic Mutual Life Association. Judgment directed for defendant, and exceptions or dered to be heard in the appellate court in the first instance. Excep tions overruled.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.

J. Stewart Ross, for plaintiff.

L. Laflin Kellogg (Alfred C. Pette, on the brief), for defendant.

WOODWARD, J. William G. Nelson was the husband of the plaintiff in this action, and the latter is the beneficiary under a policy of insurance written by the defendant upon the life of Mr. Nelson on or about the 11th day of December, 1896, for $5,000. The pleadings allege that on the 20th day of August, 1897, at the city of Brooklyn, said William G. Nelson died; that his death was not caused by any of the matters excepted in said certificate of insurance; and that both he and the plaintiff had fulfilled all of the conditions of said policy on their part to be kept and performed. The answer admits the issuing of the certificate, but denies any knowledge or information sufficient to form a belief as to the death of said Nelson, and also denies on information and belief that he and the plaintiff each fulfilled the terms and conditions of the said certificate to be performed by them. Upon the trial the evidence was directed to the support of the plaintiff's claim, and at the close of the evidence the court, on motion of the defendant, directed a verdict in favor of the defendant, the exceptions to be heard in

the first instance by this court. The only question on which the plaintiff asked to go to the jury was as to the death of her husband on the 20th day of August, 1897, and we are to determine whether there was any evidence on which the plaintiff could properly demand the submission of this question to the jury. The facts which may be deemed to have been established by the evidence are as follows: Mr. Nelson was a patent solicitor, with offices at 108 Fulton street in the borough of Manhattan. On the 20th day of August, 1897, he request. ed one John M. Smith to go with him to Coney Island for a swim; and subsequently, on the same day, requested one Adolph Aaron to go to Brighton with him for the same purpose. Neither of these parties accompanied Mr. Nelson, and there is no witness produced who saw him after the interview with Mr. Aaron, which occurred in the office of Mr. Nelson in New York. On the morning of the 21st day of August, 1897, the manager of the Brighton Beach Bathing Pavilion, in examining the bath houses of the pavilion, found the door of room No. 27 locked, and on opening the door found a man's clothes there, consisting of an entire suit of clothing, underclothing, hat, socks, shoes, with a pocketbook containing certain papers and memorandum, and, among other papers, cards bearing the name William G. Nelson. This clothing was subsequently identified as being the property and effects of William G. Nelson, the husband of the plaintiff, and the same clothing worn by him from his home on the morning of August 20th, and efforts were subsequently made to ascertain of the existence in life of William G. Nelson, but he has never been heard from since that date. Mr. Nelson had an appointment to meet a Mr. Cummings on the evening of August 20th, and among the papers found in the bathing house pavilion was a check drawn to the order of Mr. Cum. mings by William G. Nelson for $41.69; but it appears from the evi dence that he had practically no money in the bank on which this check was drawn, and that he was in arrears both for his office and house rent. It was established that Mr. Nelson was regular in his habits; that he was rarely away from home without his wife with him; that his habits were domestic, and that his relations with his wife were pleasant; that he appeared perfectly well on the 20th of August, was of a happy disposition, and never left home without communicating with his wife. Upon this foundation the plaintiff asked to go to the jury upon the theory that the insured had, while bathing at Brighton Beach, been drowned on the day mentioned in the complaint as the date of his death. There was evidence in the case on the part of the defendant that the man on guard at the life line had been present at the bathing grounds at all of the times when the insured might have been there; that he saw no such person; that the matter was called to his attention on the finding of the clothes next day, so that he was in no wise confused upon the point; and that no one, so far as he knew, was seen to struggle or to appear in danger. But, independently of this and other matters brought out in the evidence (among them being that, although the insured was in the habit of wearing a watch and chain, neither of these articles was found in the room with the clothing, nor was there any evidence that the watch had been deposited with the manager or clerk, who usually takes

and 102 New York State Reporter

charge of such articles), we are unable to find any evidence which would justify a jury in finding that the insured died on the 20th day of August, 1897. The general rule is that the proof of the death of a person once living is incumbent on the party who asserts the death, for it is presumed that the person still lives until the contrary is proved (O'Gara v. Eisenlohr, 38 N. Y. 296, 299, and authorities there cited), and this presumption continues at common law during a period of seven years, where there are no tidings of the absent one. In the case before us the insured was last seen in a safe place. He was in his office in the city of New York, and the only evidence that he was at Brighton Beach on the day mentioned is furnished by the finding of his clothes in one of the rooms on the bathing pavilion, and even this evidence is materially weakened by the fact that his watch and chain are not accounted for. It is undoubtedly true that the length of time which must elapse in order that the presumption of death may arise may be abridged by proof of facts and probabilities that life has been destroyed, that it may arise whenever the facts of the case warrant it, and that, when one last heard from was in contact with some specific peril, that circumstances may raise a presumption of death without regard to the duration of the absence (Straub v. Lodge, 2 App. Div. 138, 37 N. Y. Supp. 750); but in the case at bar none of these features are present. The insured, when last heard from, was in a safe position; and, even had it been certain that he was at Brighton Beach on the day mentioned, the peril of bathing at a public bathing place in the presence of large numbers of people, on a still, clear day, with life lines stretched, and a man on guard in a boat, is not such a specific peril as to bring the insured within the exception to the gen eral rule, under the conditions which were shown to exist on the day mentioned. It is clearly not the law of this state that death may be established on evidence so slight as that introduced by the plaintiff in this action, and the rule emphasized by Laidlaw v. Sage, 158 N. Y. 73, 97, 52 N. E. 679, makes it improper to submit to the jury evidence. which is insufficient to sustain the claim of the party upon whom the onus rests.

The exceptions should be overruled, and judgment in favor of the defendant entered, with costs. All concur, except SEWELL, J., taking no part.

(37 App. Div. 265.)

YAPLE v. NEW YORK, O. & W. RY. CO.

(Supreme Court, Appellate Division, Third Department. January 24, 1901.)

1. CONTRACTS-RESCISSION-RESTORATION OF CONSIDERATION.

In an action for injuries to the person and property of plaintiff, defendants having pleaded a release, plaintiff could properly reply that such release was procured by deceit, and assert that he did not know that he was signing a release for personal injuries, and that the release was only signed for injuries to the property, without offering to restore the consideration of the release.

2. ACTION-SPLITTING CAUSES OF ACTION.

Though one sues for injuries to his person and property, caused by the same act of negligence, in one action, the fact that he has settled

for the injuries to his property does not bar his right to prosecute the action for injuries to his person.

Kellogg and Edwards, JJ., dissenting.

Appeal from special term, Sullivan county.

Action by Frank Yaple against the New York, Ontario & Western Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before PARKER, P. J., and MERWIN, SMITH, KEL LOGG, and EDWARDS, JJ.

W. F. O'Neill, for appellant.

Geo. H. Carpenter, for respondent.

MERWIN, J. This action was brought to recover damages sustained by the plaintiff by reason, as he claims, of the negligence of the defendant in the operation of one of its trains on or about July 16, 1896. It is alleged in the complaint that while the plaintiff, with a horse and wagon, was attempting to cross the defendant's track at a highway crossing, a train of defendant, coming at a dangerous rate of speed, and without warning, ran upon and over the plaintiff and his horse and wagon, killing the horse, injuring the wagon, and inflicting upon the plaintiff himself serious and permanent injuries upon the head and back, by reason of which losses and injuries and the expense incidental thereto the plaintiff has suffered damage in the sum of $10,000. The defendant, in its answer, among other things, sets up that on or about the 10th of April, 1897, the plaintiff, in consideration of the sum of $200 to him paid by defendant, executed and delivered to defendant a release of all claims he had against it, and particularly for any personal injuries and damage to personal property sustained at the collision referred to. The plaintiff, in reply to this, admitted on information and belief that he made and executed a release in the terms and substance the same as set forth in the answer, and alleged that at the time it was executed he was suffering great bodily pain, and was in such condition of mind that he was incompetent to appreciate the character of the instrument; that, if he did execute a release of the cause of action alleged in the complaint, the same was obtained from him by deceit and misrepresentation while he was so enfeebled and incapacitated to properly understand the effect and meaning of the instrument he signed, and that he never intended to execute a release to the defendant for his personal injuries. The case was brought on for trial before the court and a jury. After the opening of the case by the counsel for the plaintiff, the counsel for the defendant moved upon the opening and on the pleadings to dismiss the complaint upon the ground that there was no allegation that the money received as consideration for the release had been restored or offered to be restored. It was stated in the opening, among other things, that the plaintiff did not know that he was signing a release for his personal injuries, and that the release was only signed for the horse and wagon, which were worth more than he received; that the plaintiff claimed nothing now for damages on the horse and wagon; that the release was obtained by fraud or false representations.