Bailey v. Krupp

The plaintiff sued to recover the sum of $335 for rent for the month of August, 1907, agreed by the defendant to be paid according to the terms of a written lease executed by the parties. The claim of the plaintiff was not disputed. The answer set up three counterclaims: First, a lease to the plaintiff from the defendant of a portion of the same premises, by reason of which plaintiff was indebted to defendant for rent in the sum of $43; second, ■damages by reason of the failure of the plaintiff to give the defendant possession of the demised premises on February 1, 1907, as provided in his lease; third, that subsequent to the entry into possession by the defendant under the lease the plaintiff promised to pay for repairing the elevator in said premises. Upon the trial the amount of the first counterclaim only was allowed, and judgment for the pláintiff

Substantially all the testimony offered by the defendant tending to establish his second counterclaim was excluded by the court. This was error. It is true that the plaintiff proved that soon after the defendant took possession of the demised premises he rendered a bill for alleged damages suffered by him by reason of the failure of the plaintiff to permit the defendant to have exclusive possession of the premises until six days after the commencement of the lease, which bill was paid by plaintiff. This bill, however, did not include the rental value of the premises during the time the tenant was deprived of them by the acts of the landlord, but was for lumber used in making certain repairs, windows, storage of goods, etc. The ruling of the court that this counterclaim “is not an issue that can be raised herein” was erroneous. The evidence as to whether or not the defendant was wholly deprived of the use of the premises was not very conclusive, •and it may be that the items contained in the bill rendered by him to the plaintiff, and paid, contained all the items of damage to which, under the circumstances, the defendant was legally entitled; but the evidence upon that question should have been admitted, and weighed by the court, bearing in mind that the true rule of damage, in case where the tenant is deprived of the use of demised premises by the landlord, is the amount represented by the excess of the actual rental value over the rent reserved in the lease. Trull v. Granger, 8 N. Y. 115 ; Pumpelly v. Phelps, 40 N. Y. 60 , 100 Am. Dec. 463 ; Dodds v. Hakes, 114 N. Y. 260 -265, 21 N. E. 398 .

The defendant’s third counterclaim was set forth in the answer as ■follows:

“That subsequent to the making and entering into of the lease referred to in plaintiff’s complaint the plaintiff for a valuable consideration promised and agreed to pay the cost of repairing the elevator in the premises •described in the complaint,” that the plaintiff neglected and refused to pay for the same, and that defendant paid for repairing said elevator the sum •of $55.

The lease was dated November 5, 1906, the term to begin February 1, 1907, and covered four lofts in the building at No. 50 Leonard street, in this city. It contained a clause by which the tenant agreed to “maintain and operate the elevator and machine pertaining thereto at his own costs and expense,” and also a clause that the tenant :should “make all necessary repairs on said premises without expense to the lessor, except damage by fire,” etc. On the same day, and to "take effect at the same time, the defendant leased to the plaintiff the “rear half of first loft” in the same building. This lease contained no reference to the elevator, but contained the same clause regarding repairs as was in the lease from the plaintiff to the defendant. The ■court below ruled that the defendant could not offer any testimony .at all upon the subject of the making of repairs upon the elevator at the request of the plaintiff. The lease obligated the defendant to "“maintain” and operate the elevator. This clause was typewritten in

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