of removal of defective material and of replacing the same in accordance with the contract. 2. SAME-MEASURE OF DAMAGE. Where the complaint in such an action claims for material not furnished and for delay in performance of the work, it is not error to refuse to charge that the measure of damage is the difference between the value of the work as done and as required by the contract. APPEAL from judgment in favor of plaintiff. Action to recover damages for the improper and negligent construction of a building. The complaint alleges that defendant agreed to complete the building by the 1st day of October, 1888; that he failed to complete the same at that time, or within a reasonable time thereafter. The complaint further alleges that on or about January 8, 1889, the defendant made another written agreement, which is annexed to and forms part of the complaint; and that he failed also to complete the last named agreement according to its terms, and performed the work and furnished the material in a manner unskillful and unworkmanlike, employed inferior and defective materials and delayed the construction of the premises so that the plaintiff lost the value of the use thereof. The answer admits the making of the contracts, except that defendant denies the covenant to complete by October 1, 1888; denies that he proceeded in a negligent, dilatory and unskillful manner; alleges that plaintiff gave him a mortgage as security for payments to become due under the contract, and by fraud, trick and device procured him to satisfy the same. He further alleges that after the agreement of January 8, 1889, he proceeded and completed the building as soon as possible; that the last installment of $723.50, and also extra work of the value of thirty-two dollars remained unpaid, and that he has filed a lien to recover the same. The defendant further alleges that he was hindered by plaintiff herself, and by her failing to have certain necessary work performed outside of his contract, which rendered it impossible for him to complete his agreement. On the trial plaintiff was allowed to show what it would cost to take out the defective doors and hardware and put in new to conform to the plans and specifications. The court was requested to charge that the measure of damage was the difference between the value of the work as done and as required by the contract, but refused to charge that further than he had already charged. Thomas D. Rambaut and L. A. Gould, for resp't; Samuel P. Potter (James Troy, of counsel), for app'lt. PER CURIAM. The plaintiff brought this action to recover damages for breach of contract for the building of a house, and on the trial it was claimed that the defendant delayed performance and that there were defects in the work. The jury rendered a verdict for the plaintiff for the sum of $450, and from the judgment entered thereon this appeal is taken. We are only called upon to review certain exceptions, and after a careful examination of the same we think that there was no erroneous ruling which resulted injuriously to the rights of the defendant. It was proper to allow the plaintiff to show the cost of removal of defective material and of replacing the same in accordance with the contract. Such cost did not necessarily constitute the measure of damage, but the testimony was properly admitted, to be weighed by the jury in arriving at a conclusion. Kidd v. McCormick, 83 N. Y., 391. The request to charge as to the rule of damages was properly refused as too general. It was the correct rule as to defective workmanship or poor material, but in this case there was also a claim for material not furnished and for delay in the performance of the work. Judgment and order denying new trial affirmed, with costs. BETTIE SCHICK, an infant, Resp't, v. THE BROOKLYN CITY R. R. Co., App'lt. (City Court of Brooklyn, General Term, Filed June 23. 1890.) VERDICT-WEIGHT OF EVIDENCE. The mere fact that the witnesses for one side outnumber those on the other will not necessarily create a fair preponderance of evidence such as is necessary to require a verdict to be set aside as against its weight. A fair preponderance of evidence in this connection means evidence of such character and weight as will carry conviction to the minds of the jurors of the existence of the facts sought to be proven. APPEAL from judgment in favor of plaintiff for $500 and from order denying motion for a new trial. Action to recover damages for injuries alleged to have been caused by defendant's negligence. B. F. Strauss, for resp't; Moore & Wallace, for app'lt. VAN WYCK, J.-The only question raised on this appeal is that the verdict for plaintiff is against the weight of evidence. car. Plaintiff rested her case as to how the accident occurred upon the testimony of herself and Lena Bloch, her companion on the Their testimony was to the effect that the conductor was signalled to stop, and that he blew his whistle and the car came to about a stand still, and as she was about to step off he blew his whistle, and the car started and threw her off. The defendant produced seven witnesses for the purpose of throwing light on this accident and contradicting the story of the plaintiff and her companion, and now insists that their testimony demonstrated that the verdict is against the weight of evidence, and should not be allowed to stand. The largest number of witnesses will not necessarily create a fair preponderance of evidence over that of the smaller number. A fair preponderance in this connection means evidence of such character and weight as will carry conviction to the minds of the jurors of the existence of the facts sought to be proven. This requires of us a careful examination of the testimony in this case. We have read it all critically, and find in the testimony of defendant's witnesses circumstances that tend to corroborate the testimony for plaintiff and to weaken the statements of defendant's witnesses, as well as contra dictions of the statements of plaintiff's witnesses. The conductor's employment is some evidence of his bias; besides his story is in conflict in some respects with that of other witnesses for the defendant, and has some of the ear marks of improbability. He says immediately after he was signalled to stop the car he blew his whistle for that purpose, and that instantly, before it stopped, plaintiff made a running jump from the body of the same while it was in motion, and while both of her hands were held by her companion (witness Bloch). Vogt says she fell backwards. Hirschberg says he is not certain the car was in motion. Saul Pass says he was engrossed with his newspaper and did not see her leave the car, though he saw her on the ground. Schmidt says the same. Behring says she made a step down and fell. We think the jurors, who had all the advantages of seeing and hearing these witnesses, were the best judges of the truth of the story told by plaintiff and Lena Bloch, or of the story presented by the defendant. Defendant's counsel did not move for a nonsuit or ask for the direction of a verdict in its favor. This would seem to indicate that he at that time thought it was a proper case to submit to the jury. Ross v. Colby, 3 Hun, 546 ; Barrett v. Third Ave. R. R. Co., 45 N. Y., 628, 632. We do not find that preponderance of evidence which calls upon us to disapprove of the verdict of the jury. The judgment and order appealed from must be affirmed, with costs. OSBORNE, J., concurs. THE RELIABLE STEAM POWER Co., Resp't, v. THE SOLIDARITY WATCH CASE COMPANY, App'lt. (City Court of Brooklyn, General Term, Filed June 23, 1890.) LEASE-RIGHT OF TENANT TO TERMINATE. By the terms of a lease of part of a building, plaintiff agreed to furnish defendant with steam power every work day, except such time as may be necessary for repairs and alterations to plaintiff's plant, and agreed that the accumulated delays for that purpose should not exceed twelve work days in each year, "except in case of accident to landlord's plant by explosion or otherwise," in which case defendant might terminate the lease. A fire took place in the building which injured defendant's shafting and belts, so that they could not be used until the building and belts were repaired, which took three weeks. The injury to plaintiff's belting was trifling, and could have been replaced in a day, if needed. Held, that defendant was not entitled to terminate the lease, as the injuries were not caused by an explosion, and if they were, it was not shown that plaintiff failed for more than twelve days to furnish the power. APPEAL from judgment in favor of plaintiff, entered by direction of the court. Action for rent of the top floor of a building leased by plaintiff to defendant. J. M. & H. N. Van Cott, for resp't; Chas. II. Machin, for app'lt. VAN WYCK, J.-Plaintiff leased to defendant, for a fixed term and price, the top floor of a building with steam power. The engine and boilers which supplied the power were located in an adjoining building. A fire occurred in the demised premises, and a few days thereafter defendant notified plaintiff of its intention to move out, which was done. To this action for rent, for a period subsequent to the complete repair of premises, defendant's defense is, that it vacated premises and terminated the lease as it had a right to do. The court directed a verdict for plaintiff, and from the judgment entered thereupon this appeal was taken. The parties to this lease, recognizing that there were two species of property let, which were liable to such injuries from particular causes as would render them useless, contracted with reference thereto. There is always a chance of destruction of buildings from fire, and steam plants from explosion. The ninth paragraph of the lease is the usual fire clause, but there is no contention that there was a total destruction of the building therefrom; therefore this gave defendant no right to terminate the lease. This brings us to the consideration of the first paragraph of this instrument, which gave defendant, under certain circumstances, the right to terminate the lease, which reads as follows: "1st. The landlord agrees to furnish said steam power, live steam and water for all work days, viz.: every day in the year excepting Sundays and legal holidays, for ten hours daily, except on Saturdays, when they shall be nine hours, between the usual hours of morning and afternoon, excepting also such time as may be necessary for repairs and alterations in landlord's plant, and the landlord agrees that the accumulated delays for repairs on engines, boilers or machinery shall not exceed twelve of the work days in each year, except in case of accident to landlord's plant, by explosion or otherwise, in which case the tenant may terminate this lease, but it is hereby agreed that the landlord shall not be held liable for any loss to tenant, caused by such accident." Such steam power plant consisted of engine and boilers placed in another building, and the shafting and belting which communicated the power to this top floor, and also 1,600 feet of twoinch pipe which conveyed the steam from the boiler through the building. From the main shaft defendant received or took power by means of its own countershaft and belts. This top floor and defendant's own shafting and belts were so injured by fire as to render it impossible for defendant to use them till such damages were repaired, the building by plaintiff and this shafting and belting by defendant, which required about three weeks. Defendant could have been in no condition to take power or steam for that time. We must not forget that some of the belting and shafting that were injured did not form a part of plaintiff's plant. The injury to plaintiff's plant was of a trifling character, viz. the damage to several belts by water or fire, which could have been replaced in a day, if needed, and were actually replaced within three days, and the damage to twenty feet of two-inch pipe out of 1,600 feet, which could have been replaced immediately, and would have been ready for use as soon as defendant would have needed it if defendant had not vacated the premises. Defendant was not, and could not have been delayed in carrying on its business by injury to plaintiff's steam plant. The delay was caused solely by the injury to the building itself. So far as power and steam were concerned, the plaintiff stood ready to supply them to defendant as soon as it needed them, or was ready to receive them. What do the words, "accident by explosion," used in connection with a steam boiler or engine, mean? Explosion is defined by Webster to be "a bursting or sudden expansion of any elastic fluid with force and a loud report." It is manifest the parties to the lease had in mind the inherent danger of steam boilers to explosion from the expansion of the steam. There is not the slightest evidence to show that any such explosion injured the plant referred to in this paragraph. The defendant's counsel insisted that any accident to the plant by explosion gave it the right to terminate the lease. We cannot agree with this construction of that clause, which means and says that if the landlord shall fail to supply power or steam for every work day of the year, except twelve days necessary for repairs to plant, the lease shall remain in force, but the landlord shall not be liable to tenant for such failure unless the time shall be necessarily prolonged beyond twelve days to make repairs of injuries caused by an accident from explosion, always thought of in the use of steam, in which case the landlord shall have more than the twelve days to make such repairs without liability to tenant, though in that case the tenant shall have the option of electing the lease ended. Defendant failed to establish, in our opinion, the right to end this lease for injuries to the plant; first, because the injuries were not caused by an explosion within the intent of the lease, and secondly, even if the injuries were caused by an explosion, the defendant has not shown that plaintiff failed for more than twelve work days to give defendant the power and steam required and needed. We think the judgment and order ought to be affirmed, with costs. OSBORNE, J., concurs. JONAS P. VARNUM, Adm'r of Charles J. Hayden, Resp't, v. GEORGE W. SKINNER and JOHN SLATER, App'lts. (Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) 1. WITNESS-CREDIBILITY-CHARGE. In an action against the maker and endorser of a promissory note where the defense was usury, the endorser testified in behalf of the maker as to the circumstances connected with the giving of the note and was uncontradicted. The court charged the jury that they were not bound by such testimony if it conflicted with the circumstances of the case and was so inconsistent with the attendant facts as that the jury should not give credence to the witness. Held, no error. 2. SAME-USURY. The joint answer alleged that there was a corrupt and usurious agreement between the maker and plaintiff's intestate by which the latter was to receive ten dollars over the lawful interest on the loan. The endorser testified that prior to January 1 he went with the maker of the note to see testator in regard to the loan, which he agreed to make on a note payable to witness' order, and demanded ten dollars as a bonus, which was then paid, and that after January 1 witness took the note to in |