Hyperlawhypertext legal database Philip Realty & Construction Co. v. Chubin 119 N.Y.S. 924

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Philip Realty & Construction Co. v. Chubin

119 N.Y.S. 924 Court N.Y. App. Div. Decision date 1909-12-10 English

Delivered by RICH, J.

Contents

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p. 924
PHILIP REALTY & CONSTRUCTION CO. v. CHUBIN.
(Supreme Court, Appellate Division, Second Department.
December 10, 1909.)

Headnote

Landlord and Tenant (§ 231*)—Trial (§ 159*)—Action for Rent—Burden of Proof.
In an action for rent, in which plaintiff 'alleges ownership of property, a written lease to defendant, and default in the rent, and all of the allegations of the petition were denied, the burden was upon the plaintiff to-establish them, and no proof of ownership, or the making of any lease with defendant, being made, the court should dismiss, upon defendant’s motion. ,
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 926; Dec. Dig. § 231 ;* Trial, Cent. Dig. §§ 360, 361; Dec. Dig. g 159.*]
•For other oases see same topic & § number-in Dec. & Am. Digs. 1907 to date; & Rep’r Indexes-
Appeal from Municipal Court of New York.
Action by the Philip Realty & Construction Company against "Benjamin Chubin. Judgment for plaintiff, and defendant appeals.
Reversed
Argued before WOODWARD, JENKS, BURR, RICH,- and MIDLER, JJ.
Bernard Fliashnick, for appellant.
M. Angelo Elias, for respondent.

The petition herein was made by one Deizerkowitz, claiming to be an authorized agent of the Philip Realty & Construction Company, which was alleged to be the owner of the property, "and the appellant’s landlord, under a written agreement, by which the appellant leased of said company, on April 1, 1909, the premises he was in possession of, and agreed to pay said company rent therefor of $15 a month, in advance, and it is claimed that he was in default for the month of May. These allegations of the petition being denied, it was incumbent upon the-company to establish them by evidence upon the

p. 925
trial, before it was entitled to judgment. No proof of ownership, or ■of the making of any lease with the appellant, was made, and the refusal of the Municipal Court justice to dismiss the petition, upon appellant’s motion, when the respondent rested its case, was error.

Judgment of the Municipal Court reversed, and a new trial ordered; costs to abide the event. All concur.