Smith v. Wagner — 23 N.Y.S. 812

Majority

p. 812

SMITH v. WAGNER.

(City Court of New York,

General Term.

June 19, 1893.)

Headnote

Use and Occupation—Direction of Verdict.

In an action for use and occupation, where defendant, in his answer, admits occupation and nonpayment of the rent for one month', it is error to enter a nonsuit against plaintiff, but a verdict should be directed in his-favor for the rent of such month.

Appeal from trial term.

p. 813

Action by Harlan P. Smith against Peter Wagner for nse and -occupation. From a judgment of nonsuit, plaintiff appeals.

Reversed. •

Argued before McGOWN and VAN WYCK, JJ.

S. V. R. Cooper, for appellant.

Wm. Allen, for respondent.

The action is for unpaid rent for the use and occupation by defendant of plaintiff’s premises. The unpaid rent sued for is $75 for each of the months of March and April, 1892. The defendant, by his answer, specifically ■ alleges "that under an agreement made between defendant and plaintiff the defendant used and occupied said premises for the month of November, 1891, at the rent of $75 per month, which was paid,” and for the month of April, 1892, at the same rent, which was not paid. Thus it appears that plaintiff was entitled to a direction in his favor for $75 for the use and occupation of his premises by defendant for the month of April, 1892. Hence he should not have been non-suited. The judgment of nonsuit should be reversed, for this reason alone, however. There are others, the discussion of which are not now necessary. Judgment reversed, and new trial granted, with costs to appellant, to abide the event.