Kerwin v. MacMaster — 108 N.Y.S. 1016

Majority

p. 1016

KERWIN v. MacMASTER.

(Supreme Court, Appellate Term.

March 5, 1908.)

Headnote

Landlóbd and Tenant—Rent—Sufficiency of Evidence.

Where, in an action for rent, the evidence shows that defendant was in possession under a lease for a definite term, that her possession was in no way disturbed, and that she resisted the action merely because she believed the act of the landlord in refusing to renew the lease was arbitrary, a judgment for defendant cannot be sustained.

Appeal from Municipal Court, Borough of Manhattan,-Tenth District.

Action by-Andrew J. Kerwin, Jr., against Genevieve MacMaster. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued before GIEDERSEEEVE, P. J., and BISCHOFF and MacEEAN, JJ.

James I. Moore, for appellant.

Concededly the defendant was in possession under a lease to continue until September 1st. Her possession was in no way disturbed, yet, because displeased with what she considered the arbitrary action of the landlord' in refusing a renewal after September 1st, she left the premises in July, and has successfully resisted

p. 1017

a suit for the agreed rental. We fail to find any evidence in the record which would indicate a defense to the landlord’s cause of action, and the judgment for the defendant is quite without warrant in law upon the undisputed facts.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.