Opinion
April 19, 1948.
Appeal from County Court of Putnam County.
Final order and judgment reversed on the law and the facts, and a new trial ordered, with costs to appellants to abide the event. The defense was actual partial eviction in that an instrument executed September 10, 1946, by which the tenant purported to release two portions of the demised premises was obtained by fraud and without consideration. Both theories were submitted to the jury. The instrument of September 10, 1946, was valid even in the absence of consideration. (Real Property Law, § 279.) Since the theory of invalidity of the instrument on that ground was erroneously submitted to the jury, and there was merely a general verdict, the final order and judgment must be reversed as we have no way of determining upon which theory the case was decided. ( Hansen v. New York City Housing Authority, 271 App. Div. 986; Tumbarello v. City of New York, 269 App. Div. 847.) Appeal from orders denying the appellants' motion to set aside the verdict of the jury dismissed, without costs. Lewis, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.