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Weinstein v. Davis

126 N.Y.S. 613 Court N.Y. App. Term Decision date 1911-01-05 English

Delivered by BRADY, J.

Contents

Majority

p. 613
WEINSTEIN et al. v. DAVIS.
(Supreme Court, Appellate Term.
January. 5, 1911.)

Headnote

1. Landlord and Tenant (§ 231[1] )—Action for Rent—Constructive Eviction-Burden of Proof.
A tenant, sued for rent, has the burden of showing a constructive eviction, through failure to supply hot water as agreed.
[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 926; Dec. Dig. § 231.*]
2. New Trial (§ 71*)—Verdict—Conflicting Evidence.
In an action for rent, tried on an issue of constructive eviction, through failure to supply hot water as agreed, it was error to set aside a verdict for the tenant, where’there was only one witness on each side, and their testimony was conflicting.
[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 144, 145; Dec. Dig. § 71.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
p. 614
Action by Jacob Weinstein and another against Harry Davis. From - an order setting aside a verdict, defendant appeals.
Reversed, and verdict reinsts-ted
Argued before" GIEGERICH, BRADY, and GAVEGÁN, JJ.
Bertram William Davis, for appellant.
Herman Roth, for respondents.

This was an action for rent for the month of June,. 1910. ■ Defendant pleaded eviction by reason of the failure to maintain hot water supply to tenant as per terms of. letting. Defendant testified that no hot water was supplied-for three weeks immediately preceding the date of his moving out on May 30th. 'The plaintiffs denied this assertion. The action was tried before the court and a jury, and a verdict was rendered for defendant. On motion, made by plaintiffs, without stating any grounds therefor, the verdict was set aside. The defendant appeals.

The burden of proof was on the defendant, and the,case was fairly submitted to the jury on that issue. The record shows no reason why their verdict should not have stood. There was only one vyitness on each side, and the bare statement of a fact fyy defendant, and a denial on the part of the plaintiffs. The jury evidently believed the defendant.

The order setting aside the verdict should be reversed, and the verdict reinstated. All concur.