The opinion
Truax, J. (dissenting).
The action was brought to recover the rent of a dwelling house situate at Morris-town, New Jersey. The house was let, according to the lease which was in the possession of the appellant, “ to be furnished as it now is,” but, according to the lease in the possession of the respondent, “ to be furnished substantially as it now is.”
*132 The lease was dated the 28th day, of March, 1885, and! the appellant was to take possession of the premises on. the first day of June in that year.
It was not disputed on the trial that the house did not contain the furniture that was in it at the time the-lease was made. There was no dispute about which of the articles were not there, and therefore, under the facts in the case, it became a question of law for the trial judge to determine whether the house was or was-not substantially furnished as it was at the time the lease was made.
This question was fairly presented to the court by the motion to dismiss, and should then have been decided in favor of the defendant.
This view of the law renders it unnecessary for us to determine whether the lease delivered to the plaintiff or the lease delivered to the defendant is the controlling-lease in the case. Taking the plaintiff’s lease as the-controlling one in the case, the evidence shows that the plaintiff did not comply with his lease.
The judgment and order appealed from should be-reversed, and a new trial ordered, with costs to the, appellant to abide the event.