Kelsey v. Rowan

2 Keyes 602

• Court: New York Court of Appeals
• Decided: June 15, 1866
• Status: Published

Opinion

Hunt, J.

This is an action brought by Kelsey to procure a cancelment of his lease to Rowan, referred to in the preceding case. It was tried before the Oity Court of Brooklyn, and the complaint was dismissed. The General Term affirmed the judgment. The evidence which was excluded in the case of Roivan v. Kelsey,, was admitted in the present case, and considered by the judge in reaching his conclusions. The judge found as matter of fact, that the plaintiff (the lessor) entered upon the premises for the purpose of making repairs and alterations, and without the consent of the defendant, the lessee; that he treated and recognized the defendant as his tenant after making the alterations; that the defendant’s room was not taken down, or destroyed or prostrated; that the defendant did not acquiesce in the alterations, nor abandon or surrender his rights, under the lease; and as a conclusion of the law, the judge found that the defendant’s lease was in full force, and that his interest in the premises had not ceased or determined, and that the plaintiff was not, therefore, entitled to the relief demanded.

The case differs from the preceding one in these respects, that all the evidence n.is here admitted, and the facts found against the plaintiff, and that there are no valid/ exceptions in the case. ,We have no power to overrule the findings of fact of the court below, however unsatis- • factory they may be to us, and, upon those findings, I think the judgment is correct and must be affirmed.

All concur.

Judgment affirmed.