There have already been so many trials of this case that it is to be regretted that the judgment must be again reversed. I think there was sufficient to go to the jury on the question of constructive eviction. I am also of opinion that it was not error to allow the testimony of plaintiff’s testator, given on the first trial of this action, to be read in evidence on the present trial. The contention of appellant seems to be that section 830 of the Code would allow only such testimony as was taken upon the trial immediately preceding this one; but I think the language of the section sufficiently broad to take in any former trial where evidence was given by a party since deceased, which it is subsequently desired to use. There is nothing to show that such was not the intention of the legislature; and the opposite party always has the compensating privilege, granted by section 829, of being himself examined orally as to any matters referred to in the testimony so read.
But the trial judge fell into one very grave error in his charge. It appears that on or about the 1st day of February, 1888, the landlord, being plaintiff’s said testator, sent the following note to defendant, dated that day:
“Dear Sir: I hereby beg to inform you that I desire you to vacate the premises on First avenue which you now rent from me on or before April 30th, 1886.”
The trial judge told the jury that they might read this letter in connection with the following one of March 1, 1886, from the defendant:
“Mr. H. Koehler—Dear Sir: “We hereby surrender you the keys of prem*102ises occupied by us, and give you full possession. The premises being untenantable is the cause of our removal.”
The instruction to the jury was, in effect, that the aforesaid letterfrom the landlord was a continuing offer from the time of its transmission to accept a -surrender of the existing lease whenever the defendant chose to make it; that the letter from the defendant might be construed to operate as such surrender; ■ and that the lease, therefore, came to an end on March 1st. We think this was a misconstruction of the landlord’s words. Some such communication ' from him was necessary at some time before the termination of the original lease; because otherwise, said lease being a verbal one for one year, a new demise for a second year would arise by operation of law, if defendant elected ■to remain. In the exercise of common sense, as well as good legal judgment, ■this is the only interpretation that could be put upon the landlord’s letter. Upon a former trial of this action one of the judges of the court below has construed this letter as follows: “ Where a landlord gives his tenant a notice to move on or before April 80th, that means he is not to move after April 30th; that he is to move on the termination of the tenancy, the liberty to move sooner being a liberty the tenant has. A landlord may give a tenant notice to move on or before the 1st of May, his lease being up to the first of May; ■tout that does not mean that, if a tenant should move out the next day, he should pay no rent. It means that the landlord will insist upon his legal right to have him move out before the last day of the term. ‘ On or beforé’ is common language of the law, meaning that, if you remain one day after, you remain at your peril; you are a trespasser,—a wrong-doer. A landlord can take nothing away from a tenant’s rights, and waives nothing by serving a notice •of that kind.” This view is eminently sound, and it was grave error to submit any different one to the jury. They were allowed to find a verdict either •on the ground of eviction, or of alleged surrender of the lease brought about •by this correspondence. Of bourse, we cannot say upon which ground their finding was based; and the judgment must be reversed, and a new trial ordered, with costs to abide the event.