Sherry v. Proal — 206 N.Y. 726

Majority

p. 726

Louis Sherry, Appellant, v. Arthur B. Proal, Respondent.

(Argued October 14, 1912;

decided November 19, 1912.)

Headnote

Sherry v. Proal, 143 App. Div. 928 , reversed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 5, 1911, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover. rent alleged to be due under a lease.

Franklin Bien and Thomas M. Rowlette for appellant.

Martin W. Littleton and Frederick Allis for respondent.

We think the evidence in behalf of the plaintiff presented a question of fact for determination by the jury. If the minds of the parties met upon

p. 727

all the terms and conditions of the proposed hiring, and the plaintiff’s manager agreed to let the premises to the defendant for the term of one year, and the defendant agreed to hire the premises for said term, then there was a valid and binding lease, even though the parties expected to thereafter embody the agreement in a written instrument. (Pratt v. Hudson River R. R. Co., 21 N. Y. 305 ; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209 ; Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 339 .)

The judgment should be reversed and a new trial ordered, costs to abide event.

Vann, Willard Bartlett and Hiscock, JJ., concur; Haight and Werner, JJ., dissent; Gray, J., absent.

Judgment reversed, etc.

Cases cited

Pratt v. Hudson River Railroad 21 N. Y. 305 N.Y. p. 727
Sanders v. Pottlitzer Bros. Fruit Co. 144 N. Y. 209 N.Y. 1894-12-18 p. 727
Brauer v. Oceanic Steam Navigation Co. 178 N. Y. 339 N.Y. 1904-04-26 p. 727