Carter v. Byron — 3 N.Y.S. 48

Majority

p. 48

Carter v. Byron.

(Supreme Court, General Term, Second Department.

December 13,1888.)

Headnote

Landlord and Tenant—Action fob Eviction—Damases.

A dwelling-house, and lot of land 50x105 feet, had been leased for one year, for laundry purposes, at a rental of $20 per month. In the middle of the second month the landlord erected a new fence around the lot, cutting off 17x105 feet of it, and destroying four of the five clothes-lines of the tenant. At the time of the trial of the action against the landlord for an eviction the tenant had already paid $160 rent under the lease. Meld, that a verdict for $200 damages for the eviction was fairly warranted.

On motion for reargument. Por former opinion see 1 ÍT. Y. Supp. 905.

Argued before Barnard, P. J., and Pratt, J.

P. L. McClellan, for appellant. Stanford & Stttwell, for respondent.

The motion for reargument is based upon an allegation that the opinion was based upon a fact not proven. The complaint was based upon a lease of land by defendant to plaintiff, and a forcible taking of a portion thereof after the plaintiff had entered into possession. The testimony of plaintiff upon the trial is as follows: “I continued in possession of the whole premises from April 1 until May 17, 1887. On that day 17 by 105 feet was taken away by running a fence through my yard from the street to the rear line.” The defendant “said the premises belonged to him, and he could do as he liked.” The opinion therefore correctly stated that the evidence shows an ouster as to 17 feet front and 105 feet deep. The plaintiff declined to pay the rent by reason of this eviction, and, upon proceedings being instituted against him, he was advised to pay the whole rent, so as to continue in possession of the remnant of the leased premises left to him, upon which the house stood. The evidence is as follows: “I was advised legally that I must pay the rent in order to continue in possession of the premises, and this was in the presence of Mr. McClellan.” Answer. “Yes, sir; and Mr. McClellan says, ‘ That is the only way you can do;’ I had to pay my rent, and proceed against Mr. Byron.” “Mr. Byron had treated me wrongfully.” “Mr. McClellan was the defendant’s agent in respect to the property.” ’The opinion therefore correctly states the argument as to the payment of the rent in order to restore possession, and- the reservation of the right of action for the wrong done was an agreement between the parties. The motion should therefore be denied, with $10 costs.

Pratt, J., concurs.