Havemeyer v. Switzer — 37 N.Y.S. 352

Majority

p. 352

(15 Misc. Rep. 629.)

HAVEMEYER v. SWITZER.

(City Court o£ New York, General Term.

February 7, 1896.)

Headnote

Action on Lease—Pleading—Complaint—Action on Express Contract.

A complaint which declares on an express agreement to pay rent need not allege ownership of the premises, occupancy by defendant, or the performance by plaintiff of any conditions except such as are required by the contract as pleaded.

Appeal from special term.

Action by Theodore A. Havemeyer against Walter E. Switzer. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before SCHUCHMAN and MCCARTHY, JJ.

Josiah T. Lovejoy, for appellant.

Allan Lee Smidt, for respondent.

This is an appeal from a judgment entered ■on an order overruling the defendant’s demurrer to plaintiff’s complaint as frivolous, and from said order. The action is brought on an express covenant to pay rent. In such an action, the plaintiff need not allege in his complaint, or prove, that defendant occupied or enjoyed the premises, or the ownership of the premises let. Gilhooley v. Washington, 4 N. Y. 217 . Otherwise in an action for use and occupation. Defendant claims that plaintiff should have alleged in his complaint a performance of all the-conditions of the contract on his part, pursuant to section 533 of the Code, and. citing Bogardus v. Insurance Co., 101 N. Y. 328 , 4 N. E. 522 ; but he fails to perceive that there are no conditions of the contract set up in the complaint. The contract of letting and hiring, and the agreement to pay rent, merely, are set forth. The weak point in plaintiff’s complaint is the fact that the term is not definitely stated, but with reasonable certainty it can be inferred therefrom that the term was lor a year, and commenced on May 1,1894.

Order and judgment appealed from affirmed, with costs.

Cases cited

Gilhooley v. Washington 4 N. Y. 217 N.Y. p. 352
Bogardus v. New York Life Insurance 101 N. Y. 328 N.Y. 1886-01-19 p. 352