dissent">Earl, J.

(dissenting).—The plaintiff brought this action to recover for one-quarter’s rent of the basement of a building, known as No. 9 Beaver street, in the city of New York.

On the 14th day of August, 1883, the defendants entered into a written lease with the plaintiff, whereby they leased the basement from him for a term of five years from the first day of November thereafter, at the annual rent of $4,000, payable quarterly. The premises demised are described in the lease as “ the basement in the building known as and by the number nine (9) Beaver street in the city of New York to be used as offices, said basement being about eighty feet in depth, by the full width of the building, with the improvements to be made by the lessor at his own expense as hereinafter mentioned; ” and the lessor agreed before the commencement of the term to build two or more partitions in the basement dividing the same into three apartments, each to be fitted up with suitable gas fixtures and wash-hand basins, to warm the apartments with steam heat during the term of the lease, to have the rooms connecting by doors if so required by the lessees; to build two water closets and two urinals in the rear part of the basement; to build a wide iron stairway leading to the *46front part of the basement on Beaver street side; to erect a wood and glass partition from the Beaver street front of the basement to the rear part of the building, and extending to the basement entrance on New street, leaving a passageway or thoroughfare seven feet wide from the Beaver street ■ entrance to the New street entrance, the passageway to be used in common as an entrance to and from the building; and to be lighted by the party of the first part at his own expense«

At the date of the lease the building was in process of construction. It was bounded on the south by Beaver street and on the east by New street. On the west side, from south to north, it was 115 feet six inches deep, and on the east side 102 feet seven inches deep.

The defendants claim that the plaintiff- did not fit up the basement according to the agreement, and never gave or offered to give them possession of the demised premises, and that they never took possession; and that therefore they are not liable to pay the rent. They contend that they were entitled, under the lease, to the whole basement, excepting the passageway seven feet wide, and that the plaintiff fitted it up for them only to about the depth of eighty feet and reserved the balance for himself, which he occupied and possessed for his own purposes. They also claimed that he did not build the passageway seven feet wide from the Beaver street entrance to the New street entrance, as he had covenanted to do in the lease.

We do not find that any errors were committed by the trial judge in the reception or rejection of evidence. He received all the competent evidence bearing upon the issues offered by either party, and received no incompetent evidence which was objected to. He submitted the case to the jury for them to determine upon the evidence whether the defendants had taken possession of the premises under the lease, and charged that if they had the plaintiff was entitled to recover although he had not completed or fin*47ished the basement in accordance with the lease ; but that if they had not, then the plaintiff was not entitled to recover unless he had finished and completed the basement in accordance with the lease. He also submitted to the jury the question of the construction of the lease, leaving it to them to determine whether the construction claimed by the plaintiff or that claimed by the defendants was the correct one.

We are of opinion that the court should have construed the lease as a question of law, and should not have left its •construction to the jury. It is a general rule of law that written instruments are to be construed as matter of law by the court, and this case is not brought within any of the •exceptions to that rule. Here there is no latent ambiguity, and there are no technical terms to be explained. But no harm was done to the defendants in submitting the construction and meaning of the lease to the jury, as we are •of opinion that it was the duty of the court to construe it according to the contention of the plaintiff.

For the purpose of construing the lease, and placing the court in the same light which surrounded the parties, it had the right to consider all the facts existing at the time of its ■execution, and the circumstances attending the same. The subject of the lease was the basement of a building which was to be seven stories high, and it is not to be supposed that the plaintiff intended to deprive himself entirely of the ordinary use of a basement for an engine, elevator, coal bin, and such other appliances and arrangements as are usually placed in the basement of such a building and are necessary to its convenient and proper use and occupation. If he had intended to rent the whole basement to the defendants, with the exception of the passageway it would have been easy to describe it simply as the basement, or the whole basement of the building. Instead of that, with a perfect knowledge of the depth of the building, the basement room rented is described in the lease as being about *48eighty feet deep, and the full width of the building, thus-leaving a large space in the rear not included in the dimensions given. Then, too, it is quite significant that the passageway through the building was to be for the common use of both "the lessor and the lessees. It is difficult to perceive what use the lessor was to have for it if he was to have no right whatever in the basement.

It cannot be supposed that there was any mistake in describing the depth of the basement intended to be rented, as a diagram of it was present at the time the lease was-drafted.

The basement rented was the rentable portion thereof, and that was present in the minds of the parties as the basement. The portion rented was to be divided into three-apartments, connected by doors, and they were to be used as offices. These apartments were exhibited on the diagram present when the lease was drawn and they clearly constituted the basement demised, nothing being said in the lease about any other rooms or any other portion of the-basement.

The plaintiff was, therefore, right in his contention that the defendants leased only that portion of the basement-extending from Beaver street to a depth of about, eighty feet.

The passageway seems to have been constructed in substantial compliance with the terms of the lease. It was to be seven feet wide, with a wide iron stairway leading to the front of the basement, on the Beaver street side. That stairway was constructed. There is no provision in the lease for any stairway on the New street, side of the basement, but the passageway or thoroughfare was to extend from the Beaver street entrance to the New street entrance, which means the New street entrance of the basement. Such passageway as that we understand was constructed, or at least the jury could have so found. There was no practicable way of constructing a passageway seven feet *49wide into and upon New street, as the space between the side of New street and the building as erected and constructed, at the time of the lease, was not more than thirty-two inches, and the top of the street was nearly as high as the basement. There was a convenient stairway, as convenient as could reasonably be made or required from the end of the passageway through the basement to the street.

We think, therefore, that the court could properly have decided, construing the lease, or that the jury could have found that the plaintiff had substantially performed the lease on his part, and was entitled to recover the rent of the defendants.

But even if this were not so we think there was sufficient evidence that the defendants had the possession and control of the basement from the first day of November, 1888, and that they did not reject or attempt to reject the premises or refuse to occupy them until early in February thereafter. We think there was sufficient evidence to justify the jury in finding that McMahone was the agent of the defendants to take and receive possession of the basement from the plaintiff. The evidence of the plaintiff, which is to some extent confirmed by other witnesses, standing alone, certainly tends to show that McMahone was the agent of the defendants, with whom he was authorized to deal in reference to the demised premises. It is true that this evidence was contradicted on the part of the defendants, but the conflict in the evidence made a case for the action of the jury. Therefore, after the plaintiff delivered the keys toMcMahone and he retained them, and put up a sign advertising the basement for rent, and the defendants had. during three months endeavored to obtain tenants • for the-premises, it was then too late for them voluntarily to surrender the premises to the plaintiff and refuse to pay the-rent for the quarter ending on the first day of February. Their only remedy was, not to refuse to pay the rent, but-. *50if the plaintiff had failed fully to perform the lease on his part, to sue for, or to recoup or counterclaim the damages suffered by them on account of such failure.

While the lessee retains possession of the demised premises, he cannot escape liability for the rent,' and that liability continues until he is evicted by the lessor or by paramount title, or until he voluntarily surrenders the demised premises because the lessor refused to give him possession of the whole thereof, or otherwise fails to keep some essential covenant on his part. Taylor’s Landlord and Tenant, §§ 372, 379; Hunt v. Silk, 5 East, 449; Allen v. Pell, 4 Wend. 505; Etheridge v. Osborn, 12 id. 529; Arnold v. Clark, 45 N. Y. Sup. Ct. R. 252, Chadwick v. Woodward, 13 Abb. N. C. 441; Hay v. Cumberland, 25 Barb. 594.

We are therefore of opinion that no error was committed in the court below, and that the judgment should be affirmed with costs.

Andrews, J., concurs.

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