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Robinson v. McDonald

188 A.D. 364 Court Third Department, Decision date 1919-06-30 English

Delivered by Lyon, J.:

Contents

Majority

p. 364
Mary W. Robinson, Appellant, v. John F. McDonald, Respondent.
Third Department,
June 30, 1919.

Headnote

Landlord and tenant — promise to give notice of intention to abandon premises — failure of consideration — mistrial.
The question litigated upon a trial in a city court was whether the defendant rented a house of the plaintiff for a specified term from September first to April first of the following year, as the plaintiff claimed, or merely from month to month as the defendant claimed. The defendant testified that in October he promised the plaintiff he would give her one month’s notice of intention to abandon the premises which he abandoned November thirtieth. The notice was dated and served November sixth.
Held, that the defendant’s promise was without consideration and void, especially since the plaintiff denies that the defendant ever agreed to give such notice.
A holding by the city judge, that the notice was a failure to carry out the lessee’s contract to give thirty days’ notice of intention to abandon the premises, created a mistrial, for which the judgment in plaintiff’s favor should be reversed and a new trial ordered.
Appeal by the plaintiff, Mary W. Robinson, from a judgment of the County Court of Broome county, entered in the office of the clerk of said county on the 24th day of February, 1919, reversing a judgment of the City Court of Binghamton in plaintiff’s favor, and also from the order entered in said clerk’s office on the 10th day of February, 1919, pursuant to which the judgment of reversal was entered.
Bollin W. Meeker, for the appellant.
Mangan & Mangan [Thomas J. Mangan of counsel], for the respondent.

The question litigated in the City Court was whether the defendant rented the house of the plaintiff for the term from September 1, 1916, to April 1, 1917, as the plaintiff claims, or merely from month to month, as the defendant claims.

The defendant testified that in October he promised the plaintiff he would give her one month’s notice of intention to abandon the leased premises which he abandoned November

p. 365
thirtieth. The notice was dated and served on November sixth. The defendant now claims that such promise was without consideration and void. In this he is doubtless correct, as the plaintiff denies that the defendant ever agreed to give such notice. (Bronner v. Walter, 15 App. Div. 295 ; Hirschfield v. Alsberg, 47 Misc. Rep. 141 ; Schiff v. Pottlitzer, 51 id. 611.)

The acting city judge held that the notice was a failure to carry out the lessee’s contract to give thirty days’ notice of intention to abandon the premises, whereas if he had found that the leasing was for a full term, he should have held the defendant liable for the rent; and if he had found that the leasing was from month to month, he should have found for the defendant. The result is a mistrial, for which the judgment should be reversed, without costs in this court or' in the County Court, and a new trial ordered in the City Court.

All concurred.

.Judgment of County Court and City Court reversed on the ground that there was a mistrial and said judgments are not sustained by the evidence, and a new trial granted in the City Court, without costs to either party.

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