McInerney v. Brown — 121 N.Y.S. 435

Majority

p. 435

McINERNEY v. BROWN.

(Supreme Court, Appellate Division, Second Department.

March 4, 1910.)

Headnote

Landlord and Tenant (§ 182^[1] )—Oral Lease—Right to Recover Rent.

Where plaintiff orally leased premises for three months, with the option to the lessee of a renewal by written lease for three years, and that a written lease with this stipulation should be executed, which was not done, .and a payment was made at the time of the letting, plaintiff’s right to recover rent for the three months is not affected by the unenforceable contract as to the renewal.

[Ed. Note.—For other cases, see Landlord and Tenant, Dec. Dig. § 182.^[1] ]

Appeal from Municipal Court, Borough of Brooklyn, Sixth District.

Action by Charles A. "Mclnerney against Louis Brown. From a judgment dismissing the complaint, plaintiff appeals.

Reversed.

Argued before JFNKS, BURR, THOMAS, RICH, and CARR, JJ.

Jesse Fuller, Jr., for appellant.

Nathan Schwartz, for respondent.

The action was brought to recover rent under an alleged oral agreement. It was agreed that the lessee should have the option to renew the lease at its expiration for the period of three years, and that a written lease should be executed to contain that stipulation. No written agreement was executed, and because of this the municipal justice dismissed the complaint at the close of plaintiff’s case. The evidence of the plaintiff shows the oral letting to have been for the period of three months, and that a payment was made at the time on account of the rent to become due. This constituted a legal renting, and cannot be influenced by the fact that the plaintiff made a further unenforceable agreement with the defendant.

The judgment of the Municipal Court must be reversed, and a new trial ordered; costs to abide the event. All concur.