I dissent. The case presents, as it seems to me, a pure question of fact. The appellant claims that whether or not the agreement for a lease for a year was made in July is controverted by one witness upon each side who flatly contradicted each other, that these witnesses are each unimpeached and of equally good character and worthy of belief, so far as the record shows, and that, therefore, the plaintiff must be held not to have sustained the burden of proof. Each side invokes the support of the letter of July 24, 1906, written by the defendant to the plaintiff some days after the interview. That letter is as follows: “The alterations you are making on the fourth floor of Ho. 524, seriously and adversely effects* the apartment now occupied by me; this together with the changes in the Ball Room lastly made, also make the apartment disadvantageous. I have therefore in conformity with the wishes of Mrs. Proal, decided not to renew my lease and on the contrary purchased a house in which we shall move this fall. The details of the moving, etc., will be looked after by Mrs. Proal. The unexpected changes made by you, in my judgment, have made your apartment very much less valuable than even the present rental. I am sorry you thought otherwise and placed such a high figure thereon for the future. I shall look back at my eight years in Sherry’s and the many kindnesses received at your hands with pleasure and trust that you may find a much better tenant than I have been.”
The plaintiff relies upon this letter upon the ground that if the facts are as defendant testified, that Flauraud had absolutely refused to make a lease for one year, and that thereupon defendant had said, “ I won’t take it at all, and I shall immediately go to Mr. Farley and buy his house,” that that was the end of the whole transaction and it was utterly unnecessary to write this letter stating that
*516defendant liad decided not to renew his lease. Secondly, that the letter bears evidence that the decision of the defendant was based, not upon the refusal of Flauraud to give him a year’s lease, but upon the opposition of the defendant’s wife to changes that were being made in the apartments.
On the other hand, the defendant relies upon this letter upon the ground that it is written proof that he did not make the lease because it was a contemporaneous writing and distinctly notifies the plaintiff that he would not renew the lease and had purchased a house.
It seems.to me clear that the inferences to be drawn from that letter, under the circumstances of this case, were clearly for the jury. If they drew the inferences desired by the plaintiff, then it cannot be said that the verdict was against the weight of evidence. That they did so is proved by the verdict.
I cannot avoid the conclusion that upon this sharp dispute of fact the determination of the case depends upon the decision of twelve men. In order to set aside this verdict we must be able to say that it was clearly against the weight of evidence. As in my opinion we cannot say that it follows that the judgment should be affirmed, with costs to the respondent.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
Sic.