Opinion
December, 1935.
Interlocutory judgment of partition and sale reversed upon the law and the facts and a new trial granted, costs to abide the event. The agreement of May 9, 1934, does not provide in terms for the payment of rent in advance for the period from the date of the agreement to April 1, 1935, and the rent for such period would be payable on March 31, 1935, unless a contrary intent and understanding are shown. There may be, as to the construction of the agreement, enough uncertainty and ambiguity to justify inquiry upon the trial as to the circumstances leading up to its execution by the parties. The evidence given by the defendants upon the trial tends to show that they believed the rent was payable in advance, yet, on the other hand, plaintiffs did not insist on its payment in advance or ever demand payment. The case was decided at the trial upon a construction of the lease itself without regard to the testimony, and, on this basis, we think the court was in error. ( Smathers v. Standard Oil Co., 199 App. Div. 368, and cases therein cited.) A new trial should be had in order that the intent of the parties may be determined from the evidence adduced. Findings of fact VI and VIII are reversed. Lazansky, P.J., Young, Hagarty, Davis and Johnston, JJ., concur.