Kings County NyArchives Court.....Grauel, Henry Vs. Mary Soeller 1889
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Source: Reports Of Cases - New York
Written: 1889

Second Department, May Term, 1889.

HENRY GRAUEL, Respondent, v. MARY SOELLER, Appellant.

Lease — description of the demised premises — misunderstanding as to the 
premises covered thereby by one party only — not a ground for its reformation.

Upon the trial of an action, brought to recover the damages resulting from the 
alleged breach of a covenant of peaceable possession contained in a lease given 
by the defendant to the plaintiff, the alleged breach consisted in the defendant 
having, without plaintiff's permission, rented a portion of the demised premises 
to a third party. The lease demised "all that certain house and lot," known as 
the 'Island View Hotel,' for the term of five years from the first day of April, 
1887. The hotel building was a double house with a veranda in front, and the 
veranda roof was extended at the sides so as to cover a room at one end, which 
was used as a barber-shop, and a room at the other end, which was used as a 
billiard-room.

Upon the trial evidence was given by both parties upon the question whether the 
barber-shop was reserved when the lease was given, and the jury found that it 
was not expressly reserved, but that the landlord intended to reserve it, and 
that the tenant supposed he got it, and that, in point of fact, the barber-shop 
was part of the " Island View Hotel."

Held, that as there was no reservation outside of the lease, and the lease, by 
its description of the property, included the barber-shop, there was no mutual 
mistake; and that the fact that the contract did not by its terms express the 
defendant's views was no defense to the action.

Appeal from a judgment recovered at the Kings County Circuit, which was entered 
in the office of the clerk of Kings county on December 8, 1888, in favor of the 
plaintiff; and, also, from an order denying the defendant's motion for a new 
trial, made on the minutes of the justice presiding at the trial, which was 
entered in the same office on the same day.

The action was brought by the plaintiff to recover damages alleged to have been 
caused by the defendant's breach of a covenant for peaceable possession 
contained in a lease, which was dated January 19, 1887, and demised to the 
plaintiff for the terms of five years from the first day of April then 
next, "all that certain house and lot known as the Island View Hotel, situate in 
the town of Gravesend, at Sheepshead Bay, between the Brighton and Manhattan 
Beach railway crossing, with the appurtenances."

Carpenter & Roderick, for the appellant. 

Albert A. Abbott, for the respondent.

Barnard, P. J.:

On the 19th day of January, 1887, the defendant gave a written lease to the 
plaintiff of premises described therein as follows "All that certain house and 
lot known as the 'Island View Hotel' for the term of five years from the 1st of 
April, 1887." The hotel building is a double house with a veranda in front, and 
the veranda roof is extended at the sides so as to cover a room, which is the 
barbershop, at one end of the house, and at the other end to cover a room used 
as a billiard room. The controversy is about the barber-shop. 

The proof was conflicting whether the barber-shop was reserved when the lease 
was given.

The jury have found that it was not expressly reserved, but that the landlord 
intended to reserve it, and the tenant supposed he got it, and that, in point of 
fact, the barber-shop is part of the "Island View Hotel." The reception of the 
fact that a barber-shop was necessary to the hotel was proper. The question was 
whether the plaintiff hired the barber-shop. The refusal of the court to permit 
the defendant to testify to her instructions, given to Mr. Burgess in regard to 
the lease, was subsequently cured by admitting rejected testimony. She testified 
that she told him that the lease was to be for five years, payment in three 
terms, without the barber-shop. The case became, then, a simple one. There was 
no reservation outside of the lease. The lease included the barber-shop by its 
description of the property, and the defendant didn't intend to give a lease of 
the barber-shop. There was no mutual mistake. The contract did not express the 
defendant's view of its terms. This is no defense to the contract. (Jackson v. 
Andrews, 59 N. Y., 244.) 

The form of the action is not objectionable; the facts are stated; the averment 
is that the defendant rented premises to plaintiff at a designated rent, and, 
without plaintiff's permission, rented out a portion of it to a third party as 
her tenant. The answer denied the leasing of the barber-shop, and asked a 
reformation of the contract to make it express the agreement between the 
parties. There was no error in refusing to charge upon the effect of the 
covenant that the lessee should not underlet the premises, or any part thereof, 
as bearing upon the disputed question of fact whether the barbershop was 
reserved or not. We think the trial judge was right, and that it had no bearing 
on the case.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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