Appeal, No. 9, Oct. T., 1900, by defendant, from judgment of C. P. Northampton Co., Jan. T., 1897, No. 8, on verdict for plaintiff in case of William L. Walter v. Aaron Transue.

Assumpsit for a breach of contract to lease land. Before Schuyler, P. J.

The court charged as follows :

This is an action brought by William S. Walter against Aaron Transue to recover damages for the alleged breach of an alleged contract of leasing. [You will naturally first inquire, what was the contract between these parties; was it a lease for five years as contended by the plaintiff, or was it a lease for a lesser time.

Now, there is a considerable amount of conflicting evidence bearing on this question which you will have to consider carefully, and decide that question first.

The single question is, so far as that branch of the case is concerned, was this a leasing for five years — was that the contract between the parties ? If you find that it was not a leasing for five years, then the plaintiff cannot recover. He does not pretend that he is entitled to recover unless he has succeeded in establishing to your satisfaction a lease for five years.] [1] [If you find that there has been a leasing for five years, then your next inquiry will be whether there was what is known in the law and among lawyers as an eviction of the plaintiff by the defendant from the leased premises.] [2]

An eviction has come in late years to include any wrongful act of the landlord which may result in an interference of the tenant’s possession in whole or in part. To constitute an eviction it is not sufficient for the plaintiff to show that the defendant warned him off of the premises, if he did nothing more than that. [To make out a ease of eviction the plaintiff must satisfy you that he did some act in addition to warning the plaintiff off the premises which interfered with the beneficial enjoyment of the premises by the plaintiff.

Now, the act of which the plaintiff complains is the construction of this fence, which the plaintiff alleges closed up one of the usual modes of access to the brick kiln premises. If you find that this fence was built in the manner claimed by the plaintiff, and that the effect of the building of the fence was to interfere with the beneficial enjoyment of the premises by the plaintiff, then that would be an eviction.] [8]

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