I cannot concur in the decision which the court is about to make in this case. When an action is tried upon conflicting evidence *336which would fairly support a decision either way, I am averse to a reversal by an appellate court merely because that court believes from an inspection of the return that it would or might have decided the case otherwise. Here, it must be borne in’ mind, the burden of proof was on the defendant. It was incumbent upon the tenant to establish by a fair preponderance of the evidence that the landlord had voluntarily accepted a surrender of the lease, and had relinquished in April all right to the rent reserved for the balance of the term ending in September. The proof offered to establish such surrender and acceptance was the statement on the tenant’s part that the landlord’s agent, a Mr. Taylor, on being informed that the tenant intended to move, replied in effect, “ move, I am glad of it.” This, although corroborated by a witness, was denied by the agent, and would seem to be further denied, or at least contradicted, by the facts that subsequently due rent was demanded, an action was brought to recover it, the tenant was shown to be a prompt payer, the landlord had frequently made repairs at the tenant’s request, although not required to do so by the terms of the lease, the usual renting period had passed, and it was impossible, as the event proved, to rent the property again during the unexpired term.
Under these circumstances the conclusion reached on appeal should be guided by what Presiding Justice Goodrich said in Richards v. Schiff (44 App. Div. 618), viz.: “ Possibly we might have concluded that the plaintiff had not the preponderance of evidence, if we were sitting as a court of first instance, but, as an appellate court, we are not controlled by such reason. We can only examine the record to ascertain whether there is sufficient evidence to sustain the findings, in the hypothesis that the trial court gave greater credence to the testimony of the witnesses for the prevailing party than it gave to his opponent.” Or, as was said by Chief Judge Roger, in Baird v. Mayor (96 N. Y. 567, 576): “In reviewing the determination of a trial court upon questions of fact, an appellate tribunal is not warranted in reversing upon the sole ground that, in its opinion, the trial court should have reached a different conclusion upon conflicting evidence. * * * To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of cer*337tainty that the trial court erred in its conclusions. * * * But when there is evidence on both sides, and the case is balanced and the mind of the court has been called upon to weigh conflicting statements and inferences, and decide upon the credibility of opposing witnesses, much weight must be accorded to the especial adaptation of the trial court to investigate and determine such questions. Any other rule would nullify the peculiar advantages which that tribunal possesses in observing the manner and appearance of the witnesses produced, and the various physical and mental peculiarities by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.”
The fact that a “ to let ” notice was posted by the landlord is of no prejudicial significance. This was not only authorized by the express terms of the lease, but was within the landlord’s power in the absence of such a reservation, upon the declaration of the tenant’s purpose to vacate the premises and to abandon the property. (Underhill v. Collins, 132 N. Y. 269.) Nor was the landlord required to return the key. (Thomas v. Nelson, 69 N. Y. 118.)
The case appears to have been carefully tried without error, and to have been carefully considered. The magistrate, Hon. William J. Lynch, has written an excellent opinion, which I adopt, as follows:
“ Lynch, J. This is an action to recover rent for the month of Hay. The defense is based solely on a voluntary surrender of the premises, and an acceptance thereof by the landlord. (See Answer.) The late Justice HcAdam, in his treatise on Landlord and Tenant, discusses at length the question as to what constitutes a surrender and acceptance within the meaning of the law (see HcAdam’s Landlord and Tenant [3d ed.], 1263-1266 * ) and the defendant has not, in my judgment, brought himself within its provisions. A plea of surrender and acceptance can only be sustained on the voluntary act of the landlord or of some affirmative act on his part tantamount to a waiver of the terms of the lease — elements essentially lacking in the case at bar. So far from consenting to the attempted surrender, the plaintiff’s agent distinctly called the defendant’s attention to the *338fact that his lease would not expire until September 1, 1902, and that if he moved he would try and rent the premises to defendant’s account. He followed this up by making a demand on defendant for the rent for the month of May, and bringing this action to enforce his demand. In addition to this, there was no good reason why the plaintiff should accept a surrender, as the defendant paid his rent punctually, and the fact that Mr. Taylor displayed anger when defendant said he intended to move tends to show that he did not acquiesce in the stand the defendant was taking. The reason assigned by defendant for the giving of Mr. Taylor’s consent to the surrender, that he had been receiving complaints ever since defendant was in the house, was not sustained. Ordinarily, the obligation to make repairs is not imposed upon the landlord unless there be a covenant in the lease providing for same, and there is no such covenant in the lease in question.
“ Where there is no agreement in the lease requiring the landlord to repair, necessity for repairs will not justify the tenant in abandoning the premises. (See McAdam L. & T. [3d ed.] 1282.*) Despite the fact that the lease imposed no obligation on the plaintiff to make repairs, the plaintiff did make repairs, but it appears that the defendant was dissatisfied with the repairs as made and that plaintiff made every reasonable effort to comply with defendant’s wishes.
“ On the question as to the character of the evidence necessary to be given to constitute an acceptance of a surrender, see the following cases: Requa v. Domestic Pub. Co. (11 Misc. Rep. 323); Kelly v. Noxon (64 Hun, 281, 283); Wallace v. Dinniny (11 Misc. Rep. 317, 319).
“ The evidence here on the part of the defendant does not bring the case within the requirements of these authorities.
“ So it has also been held that where a tenant abandons the premises and sends the keys to the landlord, the landlord is not bound to tender a return of them, and a retention thereof does not amount to a surrender and acceptance. (See Doolittle v. Selkirk, 7 Misc. Rep. 722; Thomas v. Nelson, 69 N. Y. 121.)
“ It has also been held that a landlord who, upon refusing to accept a surrender, notified the tenant that he would hold him for the rent *339and would rent the premises on the account of the ténant (as was this case) could still hold him for the rent stipulated in the lease, less the amount received from the new tenant. (See Underhill v. Collins, 182 N. Y. 269.) In this case it appears from the evidence that there has been no subsequent letting as yet, as the premises are still unoccupied.
“ if or does the fact that a ‘ to-let ’ sign may have been placed on the premises prejudice the plaintiff’s rights in any way. As was aptly said by Judge Haight in Underhill v. Collins (supra, 271-2), it rather enures to the benefit of the tenant, as it tends to reduce his liability for the full rent and at the same time not avoiding the tenant’s liability under the lease.
“ The plaintiff is entitled to judgment for the sum of thirty-five dollars for the rent of the month of May with costs.”
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
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