RUMSEY, J.
The plaintiff was the grantee of the Bijou Theater, situated on Broadway, in the city of New York. His remote grantor was Edward F. James, who, while he owned the property, had leased it to Miles & Barton for a term of years at a yearly rent of $27,000, payable in monthly installments of $2,250 each. - It was recited in the lease between James and his lessees that James had [1108]*1108in his possession the sum of $6,000 belonging to Miles & Barton, which he owed them then, and that this sum he was to hold as security for the payment of the rents, provided that Miles & Barton were to receive interest on it at the rate of 6 per cent, per annum, and the $6,000, with interest, was to be repaid to them by application of it upon account of the rent accruing during the last year of the term. An interest in this lease was assigned by Miles & Barton to Henry E. Dixey, and subsequently the three persons then owning it assigned it to the defendants here, who attorned to Sire, the plaintiff. This action was brought for the recovery of the installments which fell due on the 1st of April and the 1st of May, 1895. Soon after the last of these installments fell due, the. defendants were dispossessed, and the lease terminated. The defendants answered, setting up, among other things, the deposit of this sum of $6,000 with James by Miles & Barton; that that' sum was properly applicable upon the installments of rent sued for; and asking as an offset that it be so applied, and that they have an affirmative judgment for the difference between. the amounts due upon the rent and the $6,000, with interest. To this counterclaim the plaintiff replied, alleging that before the time the plaintiff became the owner of the premises described in the complaint, the former owner, Edward F. James, made an application of the $6,000 deposited with him in payment of the rents which were due and unpaid by the original lessees of the premises and the assignors of the defendants, so that no money remained on deposit in the hands of James not applied to the payment of the rent when the plaintiff became the owner of the premises. Upon the issues thus framed the parties came to trial. There was no dispute that the two-months rent sued for was unpaid, and it was practically conceded that James had .in his hands at the time of the making of the original lease the sum of $6,000, which he agreed to hold and apply upon the rents at the last year of the term. But the plaintiff undertook to prove that this money was actually applied by James, by an agreement between himself and Miles & Barton at the time when they were the sole lessees. For that purpose the plaintiff put James upon the stand, but it was at once made to appear that Miles & Barton were dead, and therefore the testimony of James was excluded, because he was incompetent to testify to a personal transaction with Miles & Barton. It did appear, however, that he had some conversation with Miles & Barton, at which Dixey was present, in regard to this money, and thereupon Dixey was put upon the stand. To understand the weight to be given to his testimony, it is necessary to bear in mind that the plaintiff was endeavoring to prove the actual application by James of this $6,000, or some portion of it, upon the rents which had accrued from Miles & Barton .while they were the lessees, and he was the owner. He did not allege that such application was made in any particular way, nor was he bound to prove anything more than that there was an actual application. Mr. Dixey testified that after he had" become the owner of an interest in the lease with Miles & Barton he met James, who presented to him a note for $4,000, [1109]*1109made by Miles & Barton, and asked him to indorse it. Being naturally surprised at this request, he declined to do so until he had seen Miles & Barton on the subject. Thereupon he and James went to the office of Miles & Barton, and found them there, and thereupon ensued between James and them a conversation in which this $4,000 note was spoken about, and Miles and Barton were asked what it was made for. This question was asked of Dixey:
“Do you remember what was said in reference to the deposit, as to what disposition, if any, had been made by them of the §6,000 deposited? A. That is what I understood, as I said before; it was counted on the rent. Q. Was it also stated that they owed him money in addition to the §4,000? A. I cannot remember. Q. What was counted on the rent? A. The §4,000 note. They gave this note to Mr. James because they had used up—what I understood them to say—the §6,000. Q. Because they had used up the §6,000? A. Yes, sir. Q. Did they say anything about using up the §6,000? A. No; they said it was for rent. I understood it was for that. Q. Did they say anything about the §6,000 deposit? A. Yes, they referred to it. Q. What did they say referring to it? A. They said they had used it up for rent, and gave him the notes. Q. Then did they say that they had used up the §6,000 for the rent? A. Well, l do not know whether they used the §6,000, but they must have used up §4,000 of it. That is the reason I asked them why they should give him the §4,000. Q. They had used four of the six thousand dollars? A. Well, what I said was that they had used this §4,000 for rent. Probably that went on the §6,000.”
Then the question was asked:
“Give us, as near as you can recollect, the substance of what was said about the deposit in his hands. A. What was said was that there was §6,000 on deposit, but they had used this §6,000, or a portion of it,—I do not know how much,— for back rent; and when this note came up they said they would look out for that, because it was a portion of the §6,000. That is as clear as I can give it. Q. This note was a portion of the §6,000? A. Yes, sir; they said they would let it go on that.”
There was further evidence, but unimportant, given on that subject. The only other fact material to it was that James had the $4,000 note still in his possession, which, if it had been received by him to make good the amount of $4,000 allowed upon the rent, so that he would still have $6,000 in his hands applicable to the rent, was not at all inconsistent with the claim of the plaintiffs, or with the story of Dixey. The single question presented in the case is whether, upon that testimony, uncontradicted and undisputed as it was, the jury had a right to find, as they did find, that the $4,000 of this $6,000 deposit had been applied upon that rent. In considering this question, the limitations of our right to examine it must be borne in mind.' An appellate court is not at liberty to set aside a verdict because it is not one which the court itself would have returned upon the evidence. The fact that the court is not satisfied with the verdict is of little importance, especially if the court below has refused to set it aside. Ho court has the right to interfere with a verdict based upon evidence unless it is so manifestly against the weight of the testimony that it is clear that the verdict must have been the result of passion, prejudice, partiality, or corruption. That there was evidence to warrant the finding of the jury, the quotations given above show clearly. There was no dispute as to the making of these admissions, [1110]*1110and the simple question is whether the jury had the right to give to these admissions the meaning which they did give to them.
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RUMSEY, J.
The plaintiff was the grantee of the Bijou Theater, situated on Broadway, in the city of New York. His remote grantor was Edward F. James, who, while he owned the property, had leased it to Miles & Barton for a term of years at a yearly rent of $27,000, payable in monthly installments of $2,250 each. - It was recited in the lease between James and his lessees that James had [1108]*1108in his possession the sum of $6,000 belonging to Miles & Barton, which he owed them then, and that this sum he was to hold as security for the payment of the rents, provided that Miles & Barton were to receive interest on it at the rate of 6 per cent, per annum, and the $6,000, with interest, was to be repaid to them by application of it upon account of the rent accruing during the last year of the term. An interest in this lease was assigned by Miles & Barton to Henry E. Dixey, and subsequently the three persons then owning it assigned it to the defendants here, who attorned to Sire, the plaintiff. This action was brought for the recovery of the installments which fell due on the 1st of April and the 1st of May, 1895. Soon after the last of these installments fell due, the. defendants were dispossessed, and the lease terminated. The defendants answered, setting up, among other things, the deposit of this sum of $6,000 with James by Miles & Barton; that that' sum was properly applicable upon the installments of rent sued for; and asking as an offset that it be so applied, and that they have an affirmative judgment for the difference between. the amounts due upon the rent and the $6,000, with interest. To this counterclaim the plaintiff replied, alleging that before the time the plaintiff became the owner of the premises described in the complaint, the former owner, Edward F. James, made an application of the $6,000 deposited with him in payment of the rents which were due and unpaid by the original lessees of the premises and the assignors of the defendants, so that no money remained on deposit in the hands of James not applied to the payment of the rent when the plaintiff became the owner of the premises. Upon the issues thus framed the parties came to trial. There was no dispute that the two-months rent sued for was unpaid, and it was practically conceded that James had .in his hands at the time of the making of the original lease the sum of $6,000, which he agreed to hold and apply upon the rents at the last year of the term. But the plaintiff undertook to prove that this money was actually applied by James, by an agreement between himself and Miles & Barton at the time when they were the sole lessees. For that purpose the plaintiff put James upon the stand, but it was at once made to appear that Miles & Barton were dead, and therefore the testimony of James was excluded, because he was incompetent to testify to a personal transaction with Miles & Barton. It did appear, however, that he had some conversation with Miles & Barton, at which Dixey was present, in regard to this money, and thereupon Dixey was put upon the stand. To understand the weight to be given to his testimony, it is necessary to bear in mind that the plaintiff was endeavoring to prove the actual application by James of this $6,000, or some portion of it, upon the rents which had accrued from Miles & Barton .while they were the lessees, and he was the owner. He did not allege that such application was made in any particular way, nor was he bound to prove anything more than that there was an actual application. Mr. Dixey testified that after he had" become the owner of an interest in the lease with Miles & Barton he met James, who presented to him a note for $4,000, [1109]*1109made by Miles & Barton, and asked him to indorse it. Being naturally surprised at this request, he declined to do so until he had seen Miles & Barton on the subject. Thereupon he and James went to the office of Miles & Barton, and found them there, and thereupon ensued between James and them a conversation in which this $4,000 note was spoken about, and Miles and Barton were asked what it was made for. This question was asked of Dixey:
“Do you remember what was said in reference to the deposit, as to what disposition, if any, had been made by them of the §6,000 deposited? A. That is what I understood, as I said before; it was counted on the rent. Q. Was it also stated that they owed him money in addition to the §4,000? A. I cannot remember. Q. What was counted on the rent? A. The §4,000 note. They gave this note to Mr. James because they had used up—what I understood them to say—the §6,000. Q. Because they had used up the §6,000? A. Yes, sir. Q. Did they say anything about using up the §6,000? A. No; they said it was for rent. I understood it was for that. Q. Did they say anything about the §6,000 deposit? A. Yes, they referred to it. Q. What did they say referring to it? A. They said they had used it up for rent, and gave him the notes. Q. Then did they say that they had used up the §6,000 for the rent? A. Well, l do not know whether they used the §6,000, but they must have used up §4,000 of it. That is the reason I asked them why they should give him the §4,000. Q. They had used four of the six thousand dollars? A. Well, what I said was that they had used this §4,000 for rent. Probably that went on the §6,000.”
Then the question was asked:
“Give us, as near as you can recollect, the substance of what was said about the deposit in his hands. A. What was said was that there was §6,000 on deposit, but they had used this §6,000, or a portion of it,—I do not know how much,— for back rent; and when this note came up they said they would look out for that, because it was a portion of the §6,000. That is as clear as I can give it. Q. This note was a portion of the §6,000? A. Yes, sir; they said they would let it go on that.”
There was further evidence, but unimportant, given on that subject. The only other fact material to it was that James had the $4,000 note still in his possession, which, if it had been received by him to make good the amount of $4,000 allowed upon the rent, so that he would still have $6,000 in his hands applicable to the rent, was not at all inconsistent with the claim of the plaintiffs, or with the story of Dixey. The single question presented in the case is whether, upon that testimony, uncontradicted and undisputed as it was, the jury had a right to find, as they did find, that the $4,000 of this $6,000 deposit had been applied upon that rent. In considering this question, the limitations of our right to examine it must be borne in mind.' An appellate court is not at liberty to set aside a verdict because it is not one which the court itself would have returned upon the evidence. The fact that the court is not satisfied with the verdict is of little importance, especially if the court below has refused to set it aside. Ho court has the right to interfere with a verdict based upon evidence unless it is so manifestly against the weight of the testimony that it is clear that the verdict must have been the result of passion, prejudice, partiality, or corruption. That there was evidence to warrant the finding of the jury, the quotations given above show clearly. There was no dispute as to the making of these admissions, [1110]*1110and the simple question is whether the jury had the right to give to these admissions the meaning which they did give to them. The statement of Dixey referred to a conversation had between the parties interested in the transaction, which constituted an admission, on the one hand, by the only parties who were entitled to be heard in regard to the matter, that a portion of the $6,000 deposit had been applied upon the rent, and a concession of that fact by the party who was alleged to have made the application. While the testimony was confused, and was not clearly given, yet the meaning of it was purely a question for the jury. Evidence, even of an admission, is not to be thrown aside and rejected because the court is not satisfied with the way in which it is given, or because it is difficult to understand. The effect of those things upon it is a matter for the jury, and it would be a usurpation of power by an appellate court, when testimony of an admission is given by an apparently disinterested and honest witness, and the jury had believed it, in the absence of anything to the contrary, to refuse to permit a verdict based upon that testimony to stand because they did not believe it, although the court below was satisfied with the verdict. The judge presiding at the trial heard this testimony. He heard the emphasis and expression of the witness, and he understood better than we can what weight was proper to be given to these admissions. With the evidence fresh ir. his mind, he expressed himself satisfied with it by refusing to set aside the verdict. No reason has been shown why this court should not follow the conclusion which it has reached.
No other question of importance is presented in the case, and no reason is shown why the judgment and order should not be affirmed, and they must accordingly be affirmed, with costs.
VAN BRUNT, P. J., and PATTERSON and MeLAUGHLIN, JJ., concur.