(concurring.) As was said by us w'hen this case was before us on a former appeal; (4 N. Y. Supp. 611,) “what would justify a ten.ant in vacating the premises” hired by him for a constructive eviction “depends so much on the terms of the lease, ” and various conditions in that opinion set forth, that any discussion of it at that time would be premature. As "the testimony on the new trial may change the aspect of the case, I still deem it premature to discuss that question at this time, or to express any opinion •on that evidence presented to us now. The question is a very close one, and ■can be satisfactorily decided when all the facts are before the court, to be determined after a trial free from error in other respects.
The plaintiff having died before the last trial of this action, and the defendant having become incompetent, under section 829 of the Code, to testify to .any personal transaction between himself and .the deceased, he availed himself of the right given by section 830 of the Code to read his evidence given ■on both of the former trials of this action, subject to legal objection, etc., as provided in section 830. The plaintiff objected to the reading of the testimony given on the first, trial, contending that the section confined the defendant to reading the evidence given by him on the last preceding trial, and did not permit the reading of that given on the first trial. I agree with the learned ■chief judge that no error was committed in allowing both to be read. The appellant’s contention is based upon the language used in,the section which permits the party rendered incompetent to read his evidence “ taken or read at the former trial;” insisting that it means the last trial only, if there be more than one. This construction, if correct, would confine the reading of such testimony to the first trial only, following the death of the other party; for *103the language permitting such reading is, “at a new trial or hearing,” and not any new trial, if more than one should be required, which would defeat the object of the section in case there were two trials following the death of a party. I think the intention of the section was to give competency to any testimony of the witness given in the case between the same parties before the incompetency attached to him. The then plaintiff, against whose executrix it is now offered, had the same opportunity, and certainly as great an interest, as his executrix can have to resort to every test to probe the witness and his evidence. The same reasons which render it proper to allow the testimony given on the last trial preceding the plaintiff’s death operate to allow the reading of the testimony given on the first trial, as far as the same is pertinent to the contest. I therefore think the section was intended to permit the reading of any testimony given under such circumstances, whether on the last or any preceding trial of the action.
The question read from the former examination of the witness, in which he was asked to state what the deceased had agreed to furnish, and what he had agreed to do, is, I think, fatal. It clearly called for the conclusion of the witness merely, and not for what took place or was said between the parties. The learned judge who presided at that trial first excluded the question on plaintiff’s objection that it merely called for a conclusion, and when, shortly afterwards, it was repeated, allowed it; and the answer shows that he gave his conclusions only, and not what was said or done. 'It was sufficient for the plaintiff to object, as he did, on the grounds before stated by him, and it was not necessary to repeat those" grounds. The court’s attention had been specifically called to them. Dilleber v. Insurance Co., 69 N. Y. 256, 260. The testimony given at the former trial is allowed to be read, subject to any legal objection to the testimony, or to any question put to the witness.
I agree with the learned chief judge, for the reasons assigned by him, that it was error to charge as was done in regard to the letters of February 1,1886, and March 1, 1886. For these reasons the judgment must be reversed, and a new trial ordered, with costs to abide the event.