Livingston against Miller, 1 Seld. Notes 131

This was an action to recover rent. The clause of the lease upon which recovery was sought was in the following words: “Yielding and paying therefor unto the said party of the first part (the plaintiff), yearly and every year, on the first day of January during the term, at the North river, within the county of Columbia, or within the said lot No. 3, as the party of the first part shall from time to time direct,” twenty-six dollars, two days’ riding, and four hens.

The defendant, in his answer, alleged that the plaintiff had not directed where or at what place the rents should -be paid, and although the defendant had requested the plaintiff to fix the place of payment, he had refused. The plaintiff in Ms reply stated that he did, on the first day of January, 1848, by notice in writing, direct the rents to be paid at the office of Hubbel, Clark & Go., in the city of Hudson. The judge, on the trial, decided that the service of notice where the rent should be paid was rendered material by the pleadings; to which decision the plaintiff’s counsel excepted.

The jury, on the question of fact so presented, found a verdict for the defendant, and a judgment was so entered, which was affirmed by the Supreme Court. The Court of Appeals held that the judge at the trial decided correctly, and affirmed the judgment. (S. C., 8 N. Y. 283.)