¶1 Hpon conflicting evidence the jury have found for the plaintiff, and the verdict cannot be .disturbed by this court. The verdict establishes the. making of the contract as alleged by the plaintiff, and that, within a reasonable time after the modification of the agreement, the plaintiff procured a lease of the premises required for the performance of the work contracted for and offered to assign the same to the defendant, in pursuance and performance • of the agreement, who refused to accept the same, and repudiated the contract, *613 upon the sole ground (which was negatived by the verdict) that the offer of performance by the plaintiff was not seasonable in point of time. This absolute refusal to accept an assignment of the lease excused a formal tender and offer by the plaintiff of an assignment actually executed by him, with the written assent of the landlord to such assignment. (Crary v. Smith, 2 Comst., 65; Cornwell v. Haight, 21 N. Y., 462.)
¶2 The motion for a nonsuit was properly denied. The questions of fact were fairly and properly7 submitted to the jury. The case turned solely upon questions of fact, and every question of law sought to be presented was obviated by the verdict of the jury7, fully sustained by the evidence. It was not a case for an appeal to this court.
¶3 The judgment must be affirmed.
¶4 All concur.
¶5 Judgment affirmed.