Hermitage Co. v. Roos — 110 N.Y.S. 976

Majority

p. 976

HERMITAGE CO. v. ROOS.

(Supreme Court, Appellate Term.

June 5, 1908.)

Headnote

Landlord and Tenant—Rent—Defenses—Execution—Burden of Proof.

In an action for rent, where the defense was eviction, defendant must show an eviction by a preponderance of the evidence.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by the Hermitage Company against Pierre Roos. From a judgment for defendant, plaintiff appeals.

Reversed, and new trial ordered.

Argued before GIEDERSLEEVE, P. J., and DAYTON and GERARD, JJ.

Albert H. Atterbury, for appellant.

M. E. Duffy, for respondent.

Action for one month’s rent. Answer, general denial and eviction. The latter defense was sought to be shown by evidence that the premises were insufficiently heated. The record fails to disclose preponderating proof in that direction. Indeed, plaintiff’s testimony outweighs that of the defendant.

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