Edward W. S. Johnston, for the motion. DALY, C. J. The action was brought upon an alleged agreement of the defendant, made in 1884, that if the plaintiff would release him from liability as a partner of his sons, to whom she had lent a sum of money, he would repay the loan in monthly installments of $100. The defendant made monthly payments to her for a period of over two years, and then discontinued them, and this action was brought for the balance unpaid of the original loan. The defense was that the agreement by defendant to repay the loan made to his sons was voluntary and without consideration, and was conditional, i. e. that the payments were to be made as long as his business afforded an adequate profit to do so. The issue thus raised was submitted to the jury. They were told that the plaintiff's testimony indicated an agreement founded upon the consideration of her relinquishing her claim on him as a partner of his sons, and that she claimed that the evidence of his connection with this firm of B. L. Ackerman Sons indicated that he had an interest in it, as supporting the consideration for the promise; that, on the defendant's part, he claimed that certain admissions in writing made by her, to the effect that his payments were voluntary and that she had no claim against him, were corroborative evidence that his version of the agreement was correct, and that there was no claim against him, and that he was making the payments as a matter of favor; and that, from a certain affidavit made by her in 1889, it appears that she could not have made a claim against him in 1884, based upon a contention that he was liable for any debts of Ackerman Sons. It thus appears that the case was submitted to the jury upon the question whether the plaintiff made a claim against defendant, and whether, in consideration of her relinquishing that claim, he promised to pay the installments in question, or whether no such claim was made, and the promise of defendant was voluntary, as well as conditioned upon what his business would afford. At the conclusion of the charge the counsel for defendant asked the court to charge that, "if the jury find that there was no original liability by Bernard L. Ackerman to Mrs. Dovale, there was no consideration for his promise to make the payments to Mrs. Dovale." This request was acceded to, and the jury retired, subsequently returning with a verdict for the defendant. The effect of the charge as requested is undoubted. No one can say that it did not control the verdict, for under it the jury were bound to find that the defendant was originally liable as a partner, before he could be made liable upon the agreement set up by the plaintiff, even though the jury should find that it was unconditional, and in the very terms as claimed by her. That the instruction was erroneous, there can be no doubt. This very agreement was considered by the supreme court (Dovale v. Ackermann, 15 N. Y. Supp. 196); and the general term concurred in the view that the promise of the defendant was not gratuitous, if he was not a member of his sons' firm, and that "a consideration for the agreement to pay one hundred dollars a month may be found in Mrs. Dovale's abandonment of her claim against Mr. Ackerman, Sr., in his capacity of partner, as evidenced by her letter of September 3, 1885." In the letter referred to by the court, which was signed and delivered to defendant at his re quest, the plaintiff, while acknowledging that defendant is "wholly irresponsible as to said debt," and that whatever he did and had done so far was simply in consideration of his friendship to her late husband and his family, concludes as follows: "I will further add that I agree to receive such payment as stated, and will at no time demand the payment of the whole amount due, in full, as long as the monthly payments are regularly made and met; and, should I unfortunately be compelled to do so, it would only be against the firm of Ackerman Bros., as I have no claim whatever against yourself." The view taken by the general term of the supreme court, as above expressed, is supported by conclusive authority: "It is not necessary, to uphold a promise based upon the surrender or composition and compromise of a claim, that it was a valid claim,-one that could be enforced at law." White v. Hoyt, 73 N. Y. 505-514. "The real consideration which each party receives under a compromise being, not the sacrifice of the right, but the settlement of the dispute and the abandonment of the claim, it is no objection to the validity of the transaction that the right was really in one of the parties only, and that the other had no right whatever. The fact that one may have had no claim is immaterial, if he was honestly mistaken as to his claim. It is enough if, at the time of the compromise, he may have believed he had a claim, and that the parties have, by the transaction, avoided the necessity of going to law." 1 Chit. Cont. (11th Am. Ed.) 46, and notes. "The law favors such settlements of controversies, and finds a consideration for the contract looking to the compromise in the mutual agreement of the parties to abide the result of the settlement." 3 Am. & Eng. Enc. Law, 838. "The prevention of litigation is not only a sufficient, but a highly-favored consideration; and no investigation into the character or value of the different claims submitted will be entered into for the purpose of setting aside a compromise, it being sufficient if the parties entering into the promise thought at the time that there was a question between them." 1 Pars. Cont. 364. "The fact that the promisor had a legal defense to the claim settled is no defense to an action on the new promise." Wahl v. Barnum, 116 N. Y. 87, 22 N. E. 280; Zoebisch v. Von Minden, 120 N. Y. 406, 24 N. E. 795. Applying the above principles, it is clear that the plaintiff's right of recovery upon the agreement should not have been made to depend upon the finding by the jury that there was an original liability by agreement to her. It was enough if they thought at the time that there was a question between them, or even if she believed she had a claim, although she was honestly mistaken in that belief. The promise to forbear prosecuting a claim against the defendant as a copartner in his sons' firm, if he apprehended that she might make such a claim, was a good consideration for his promise. It may have been of the highest value and importance to him that no such question should be raised and no such liability claimed, and his promise, based upon the relinquishment of such a claim at the time, constituted a benefit which upholds the promise. The motion for a new trial is opposed upon the ground that no exception was taken by the plaintiff to the erroneous instruction. There is a dispute upon this point, but it is not material. An exception is not indispensable to a review by the court of errors committed at the trial, whether in the admission or exclusion of evidence (Maier v. Homan, 4 Daly, 168; Wehle v. Haviland, 42 How. Pr. 399-409), or in the judge's charge (Lattimer v. Hill, 8 Hun, 171; Benedict v. Johnson, 2 Lans. 94; Costello v. Railway Co., 65 Barb. 92, 105; Johnson v. McConnel, 15 Hun, 293; Pettis v. Pier, 4 Thomp. & C. 690; Wehle v. Haviland, supra; De Lavalette v. Wendt, 11 Hun, 432). The verdict in this case was contrary to law, and the motion for a new trial upon the minutes was properly made upon that ground. Code, § 999. Code, § 999. Upon such a motion the whole case is before the court, upon the law as well as the facts. Tate v. McCormick, 23 Hun, 218; Wehle v. Haviland, supra. The motion for a new trial must be granted, with costs to abide the event. Motion granted, with costs to abide event. (12 Misc. Rep. 153.) GEORGE v. TREVELLYN. (Common Pleas of New York City and County, General Term. April 1, 1895.) SUMMARY PROCEEDINGS-DIRECTING VERDICT. The justice of a district court of New York City has no power to direct a verdict in a summary proceeding by a landlord against his tenant. Appeal from Seventh district court. Summary proceeding by Augusta E. George against William Trevellyn to recover possession of real estate. From a final order in favor of plaintiff entered on a verdict rendered by direction of the court, defendant appeals. Reversed. Argued before BISCHOFF and GIEGERICH, JJ. GIEGERICH, J. This is an appeal by the tenant from a final order made in summary proceedings to recover the possession of certain real property situate in the city of New York, after a default in the payment of rent. On the return day of the precept the tenant appeared and filed a verified answer, whereby he, in substance, denied each allegation of the petition, except that he was in possession of the demised premises upon the same terms as alleged in the petition, and, for a further and separate defense, pleaded eviction. A jury trial having been demanded when issue was joined, the proceeding was adjourned. On the day fixed for the trial the parties appeared in the court below, the jury was impaneled and sworn, and the trial thereupon proceeded. At the close of the testimony, and at the request of counsel for the landlord, the justice directed a verdict, to which counsel for the tenant duly excepted. A final order was thereupon made, awarding to the landlord the delivery of the possession of the property, from which the tenant has appealed. On the argument of the appeal the tenant only appeared by counsel, the landlord not appearing. The precise point presented by this appeal was determined by this court in Horn v. Prior (Com. Pl. N. Y.) 5 N. Y. Supp. 955, in which it was held, pursuant to the ruling established by the case of Blumburg v. Briggs, 10 N. Y. St. Rep, 242, that where a jury trial is demanded and had in a summary proceeding brought in a district court in the city of New York to recover the possession of real property, the justice has no power to direct a verdict. It therefore follows that the final order appealed from must be reversed, and a new trial ordered, with costs to abide the event. (12 Misc. Rep. 83.) SHERWOOD v. CRANE. (Common Pleas of New York City and County, General Term. April 1, 1895.) CONTRACTS-PROOF OF TERMS. On an issue as to whether the employment of plaintiff as an actress was for the run of a particular play, or was for an entire season, evidence that defendant's agent who engaged plaintiff engaged her for a particular play, stating, "This means a permanent thing for you in New York, from the opening until the balance of the season," and assured her that the play would not be a failure, and then stated the length of the season, is sufficient to sustain finding that the engagement was for the season. Appeal from city court, general term. Action by Grace Sherwood against William H. Crane. From a judgment of the city court (29 N. Y. Supp. 1149) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Rose & Putzel, for appellant. Howe & Hummel, for respondent. DALY, C. J. The plaintiff claims damages for breach of contract of employment by the defendant, a theatrical manager, under which she was to perform at the Star Theatre in a play called "Brother Jonathan," the performances of which were to commence in the latter part of February, 1893, and to run until about June 1st, at a salary of $60 per week. The defense is that she was not employed for any particular period, but only for the run of the play, which lasted but six weeks, and that her employment was conditional upon her rehearsal of the part to the satisfaction of the author of the play and of the defendant. She was notified in February, during the rehears als, that her services were not needed; and she remained out of employment thereafter for the whole term, except one week, in which she earned $50. The case was submitted to the jury, who found for the plaintiff in $910, being the whole amount claimed by her, after deducting the $50 earned by her. Defendant concedes that there was a question of fact for the jury, upon the evidence, as to the terms of the contract, but claims error in the charge of the court as to what would constitute a contract for a definite period, as distinguished from an engagement for the run of the play. The court said: "I charge that if the jury believe the testimony of Miss Sherwood, namely, that Brooks told her that Crane, the defendant, made no mistakes, and that the v.33N.y.s.no.1-2 play would run until June 1st, that was the contract, and she is not limited to six weeks, but is entitled to recover for the full period." To this the defendant excepted. The defendant contends that the evidence shows that the plaintiff was engaged only for the run of the play, and that the statement by Brooks, the defendant's agent, who engaged her, that the play would run to June 1st, was mere opinion, and not a warranty that it would so continue. The testimony of plaintiff, on her direct examination, was: That Brooks said: "This means a permanent thing for you in New York from the opening until the balance of the season. I will give you $60 a week from the time we open until the balance of the season." That she said, "Suppose the play is a failure?" He said, "Crane does not produce failures." She said, "How long is the season?" He said, "We will open in three or four weeks, at the very latest, from January 30th, and it will extend to about June 1st." On cross-examination she was asked: "Q. I call your attention particularly to the conversation you had with Brooks the first time you met him, and I ask you the question whether or not it was not a fact that Brooks said to you, you were engaged for the run of the play? A. Yes. Q. That is it? A. Yes; and I asked him how long the run would be, and he told me about three weeks from January 30th, until about June 1st. Q. And that, he told you, would be the run of the play? A. Yes." And again: "A. My first conversation with him. I was engaged from the time I say until on or about June 1st. Q. For the run of the play? A. Yes; that is, the length of the run of the play. Q. And he told you, in his opinion, it would run to June 1st, about? A. Yes." From this testimony, if the jury believed it, there was no doubt that Brooks not only expressed an opinion that the play would run until June 1st, but had so much confidence in Mr. Crane's judgment of plays, and ability to run them as long as he pleased, that he was willing to and did contract with plaintiff that her engagement in this piece would last to that date. So that, while he engaged the plaintiff for the run of the play, he distinctly specified that run as extending to June 1st, and there was no error in the instruction of the court on that point. But, if there were a doubt as to the sense in which Brooks' statement as to the run of the piece and plaintiff's engagement are to be understood, defendant is not entitled to the benefit of that doubt; for it is manifest that from Brooks' declaration to plaintiff that "this means a permanent thing for you in New York from the opening until the balance of the season," and "I will give you $60 a week from the time we open until the balance of the season," together with his other statements, he must have supposed that the plaintiff understood he was contracting for the season, and this understanding constitutes the contract. "Where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee." Hoffman v. Insurance Co., 32 N. Y. 405, citing Potter v. Insurance Co., 5 Hill, 149; Barlow v. Scott, 24 N. Y. 40. It is to be observed that defendant did not ask that any question with regard to plaintiff's understanding, or what defendant supposed |