Bookstaver, J.
This action was brought to recover for the rent of the third floor of Eo. 347 Fifth avenue from the middle of Eovember, 1893, to the 1st of May, 1894 The questions presented are of fact merely. On behalf of the plaintiff it is contended that the letting was on the 13tli of Eovember, 1893, and was unconditional, and that on that day or the day following the defendant took possession of the premises and continued in possession until the twenty-second or the twenty-third of the month, making some alterations on the premises. On the part of the defendant it was claimed that the hiring was conditioned upon the supplying an independent meter for the gas to be used on the floor, and also a water tank, and that these were to be done before the twenty-second of the month or the lease was not to be effectual. It is clear from the evidence that the hiring could not have been on the thirteenth of Eovember, because there was a dif ference as to the monthly rent to he paid, which was not settled until the following day. The plaintiff then gave the defendant the key to the outer door to the house, so that he might come and go as he liked. The keys of the third floor were not delivered and the defendant’s possession was not exclusive, for after that time plaintiff had furniture and other property in the rooms which was not removed. She also commenced to make the repairs that were promised. There is a direct conflict as to whether these repairs were a condition precedent or not, and we think the letters introduced in evidence strongly corroborate the defendant’s contention. On a careful review of the whole evidence we are well satisfied that the conclusion reached by the justice, who tried the case and had the witnesses before him, and was better able to judge of the weight which should be given to their testimony than, we can possibly be, was correct. It is true that several leading questions were objected to by the plaintiff’s counsel, and should have been excluded; also, that constructions of the contract were introduced in the questions propounded by defendant’s counsel which ‘were wholly inadmissible. But before such questions were allowed there was quite sufficient evidence to sustain the defendant’s contention, and we think the errors in the respects pointed out could not have affected the result.
The judgment must, therefore, be affirmed, with costs. •
Bischoff, J., concurs.
Judgment affirmed, with costs.