New York Dry Goods Store v. Pabst Brewing Co.

BAKER, District Judge, after stating the case as above, delivered the opinion of the court. Rule 24 of this court requires that the brief for the plaintiff in error shall contain, after a concise abstract or statement of the case, a specification of the errors relied upon, setting out in cases brought up by writ of error separately and particularly each error asserted and intended to be urged. In Vider v. O’Brien, 10 C. C. A. 386, 62 Fed. 327, 18 U. S. App. 711, 713, the intention of this rule was declared to be “that each specification of the brief should conform substantially, if not literally, to the particular specification of error on which it is predicated; and for convenience there ought to be with each specification in the brief a reference to'the corresponding assignment of error as well as to the place in the bill of exceptions or other part of the record where the alleged error is shown.” The nineteenth specification of error is the only one in [383] regard to which the brief purports to conform to the rule. The first specification—that the court erred in holding that the defendant was entitled to open and close—is not mentioned in the brief of the plaintiff; but, if insisted upon, and the action of the court can be said to have exceeded the discretion lodged in it with respect to proceedings at the trial, no ground for reversal is presented, unless injustice is shown to have resulted from the action of the court; and it does not appear that the plaintiff was in any way prejudiced or injured by the error complained of. Bank v. Shakman, 30 Wis. 333- The specifications of error from 2 to 18, inclusive, are referred to in the brief as a whole, and not separately and particularly, as required by the rule of this court. In what is said of these rulings no argument is offered tending to show that under the issue any of the rulings of the court was erroneous. Although not required to do so, we have examined these several rulings, and are of the opinion that no prejudicial error was committed by the court in its rulings on the questions objected to, and to which the objections were sustained. Did the court err in refusing to instruct the jury to return a verdict for the plaintiff? The instruction to find a verdict for the plaintiff must be tested by the same rules that apply in case of a demurrer to the evidence. Merrick’s Ex’r v. Giddings, 115 U. S. 300, 6 Sup. Ct. 65, 29 L. Ed. 403. In deciding the questions presented by such a demurrer the court must consider not only all the facts which the evidence tends to establish, but all such fair and reasonable inferences of fact as the jury, if trying the case, might have lawfully drawn from the evidence. The evidence in this case tended to prove that the plaintiff wrongfully deprived the defendant of the possession and enjoyment of 185 feet of bulkhead space and of 47¾ square feet of window light surface which the plaintiff had leased to the defendant. The lease itself distinctly shows that the bulkhead 'windows were demised to the defendant. If both parties to the lease had not understood and agreed that these windows constituted an integral part of the demised premises, the reservation by the plaintiff of the right to lower the ground or first floor show windows to within 18 inches above the sidewalk level would become insensible and meaningless. When the plaintiff lowered the show windows, it permanently took away from the defendant and deprived it of 185 feet of bulkhead space and 47¾ square feet of window light surface to which it was entitled. The eviction or ouster, therefore, was actual, and not constructive, for it took from the defendant a part of the very thing demised. The defendant had the right to the undisturbed possession and enjoyment of the 185 feet of bulkhead space, and of the 47¾ square feet of window light surface which the plaintiff wrongfully took from it. The contention of the plaintiff that the eviction or ouster was constructive, and not actual, is shown to be incorrect by the undisputed evidence. It is further contended by the plaintiff that the bulkhead space and the window light surface do not constitute a substantial part of the basement. It is universally agreed by the authorities that the wrongful [384] eviction or ouster oí tTie tenant by the landlord from an appreciable, material, or substantial part of the demised premises suspends the rent reserved under the lease, and will defeat the landlord’s right to recover the same. The main reason which is given for the decisions is that the enjoyment of the whole consideration is the foundation of the debt and the condition of the covenant, and that the obligation to pay cannot be apportioned. To permit an apportionment of the rent wpuld be to allow the landlord to take advantage of his own wrong. The plaintiff was not entitled to recover if the bulkhead and window light spaces constituted a material or substantial part of the premises. As was said in Smith v. McEnany, 170 Mass. 26, 28, 48 N. E. 781, 64 Am. St. Rep. 274: “It follows from the nature of the reasons for the decisions which we have stated that, when the tenant proves a wrongful deforcement by the landlord from an appreciable part of the premises, no inquiry is open as to the greater or less importance of the parcel from which the tenant is de-forced.” Whether the bulkhead and window light spaces constituted an appreciable, material, or substantial part of the basement was a question of fact, and no't of, law, and it would have ’been error to have withdrawn that question from the jury by a binding instruction. It would' have been a palpable invasion of the province of the jury for the court to have ruled, as it was, in effect, asked to do, that the wrongful taking by the landlord from the tenant of the bulkhead and window light spaces did not constitute an appreciable, material, or substantial part of the basement. They not only constituted an appreciable part of the demised premises, but the jury had the right under the evidence to find that they constituted a very important and substantial part of them. The judgment is affirmed.