Trenkman v. Schneider

Upon the original argument of the appeal, owing to the peculiar wording of the answer, and because of the admission by defendant’s counsel upon the trial that the rent in suit had not been paid, we were misled to the assumption that the defendant had controverted the allegations of the complaint that she had neglected and refused to pay the rent sought to be recovered in this action, when, in point of fact, failure to deny it operated as a tacit admission. Code Civ. Proc. § 522. The defendant’s breach being thus admitted, it is clear that the decision heretofore announced should not stand, unless the answer contains a denial of a material allegation of the complaint, in which are substantially set forth (1) the plaintiff’s ownership of the buildings in question; (2) the lease of the demised premises by the plaintiff to the defendant for three years and two months from the 1st day of February, 1891, at a yearly rental of §2,500, payable monthly in advance; (3) the defendant’s covenant to pay the rent reserved, and her entry into possession of the demised premises, and following the exact verbiage; (4) “that the plaintiff has kept all the conditions of said agreement on his part to be performed”; (5) “that the defendant has neglected and refused to pay the rent which became due and payable on the first days of May, June, and July, 1893, respectively, and there is now due and owing to the plaintiff therefor the sum of $625, with interest on $208.33 from May 1. 1893, on $208.33 from June 1, 1893, and on $208.33 from July 1, 1893.”

The defendant, by her answer, denies upon information and belief (1) “that the said plaintiff has kept all the conditions of the agreement

In 2 Pars. Cont. (8th Ed.) p. 677, the rule is thus stated:

“If money is to be paid, on a day certain, in consideration of a thing to be performed at an earlier day, the performance of this thing is a condition precedent to the payment; and if the money is to be paid in installments, some before a thing is to be done, and some when it is done, the doing of the thing is not a condition precedent to the former payments, but is to the latter. And if" there is a day for the payment of the money, and this comes before the day fixed for the doing of the thing, or before the time when the thing, from its nature, can be performed, then the payment is, at all events, obligatory, and an action may be brought for it independently of the act to be done.”

The foregoing principles were applied in Hurliman v. Seckendorf, 10 Misc. Rep. 549 , 31 N. Y. Supp. 443 , where precisely the same question as the one under consideration arose; and Osborn, J., speaking for the court, said (page 550, 10 Misc. Rep., and page 444, 31 N. Y. Supp.):

“That the lessor had a right to commence suit to recover the month’s rent on the second day of the month, if not paid, cannot be disputed; and the lessees could not be heard to allege as ground of defense to such an action that the lessor was to furnish heat, steam, power, etc., throughout the month, and that they should not be compelled1 to pay their rent for that month until they first knew whether the lessor would perform his covenant. The plain answer to such a contention would be that the lessees had covenanted to pay their rent in advance on the first of each month; that, by so doing, they had precluded themselves from requiring the performance of any conditions precedent to the payment of the rent, and they would be remanded to their" action for damages for any breach of the lessors’ covenants. * * * There is no valid foundation for plaintiff’s contention that he was bound to prove, as a part of his case, that be had performed all his covenants up to the time that the September rent became due. It was not necessary to allege his performance or nonperformance of anything that had gone before in order to properly complete his cause of action. That rested on the breach of defendants’ covenant to pay the September rent on the first day of that month; and, even if he saw fit, to allege such performance, it was not essential to his cause of action; and, consequently, he was not bound to produce evidence to sustain such allegation.”

“If the person whose life is hereby insured shall * * * die in or in consequence of a duel, or of the violation of the laws of any nation, state, or province, * * * then, and in every such case, this policy shall be null and void.”

The complaint there alleged, among other things, that the death of the insured was not caused by the commission by him of any act that could be construed as within the inhibited provisions of the policies. Held, by Miller, J. (page 239), that this allegation was not required, and all that was essential to make out a cause of action was a statement of the contract, the death of the assured, and the failure to pay as provided. This being the state of the pleadings, the affirmative of the issue upon the trial was said to be with the defendant. The allegation with respect to the amount was therefore immaterial, it being nothing more than the statement of a legal conclusion deduced from averred facts. Drake v. Cockroft, 4 E. D. Smith, 34, 36; Emery v. Baltz, 94 N. Y. 411 ; Conselyea v. Swift, 103 N. Y. 604 , 9 N. E. 489 ; Lamb v. Hirschberg, 1 Misc. Rep. 108 , 20 N. Y. Supp. 678 ; 12 Enc. Pl. & Prac. 1042; Pom. Code Pl. § 530.

It thus appears that neither of the allegations of the complaint so denied by the answer was essential to the maintenance of the plaintiff’s cause of action, and consequently such denials presented no issue of a material fact. It is thus apparent that, even had the defendant introduced no proof upon the trial, the plaintiff would have been entitled to a direction in his favor, without being first required to aver or prove the matters so denied. Hence the defendant had the burden of proof upon the only issue raised by the answer, namely, the affirmative defense adverted to, and the right, to open and close the case (Millerd v. Thorn, 56 N. Y. 402 ; Murray v. Insurance Co., supra); and the trial justice properly accorded her this right. In Millerd v. Thorn, supra, the complaint alleged the partnership of the plaintiffs, and the sale and delivery by them of certain goods. The defendant Thorn, who alone defended, denied the allegation of partnership, but admitted the purchase of the goods as alleged, and then set up an affirmative defense. Held, that denial of the partnership was immaterial, as, if the affirmative defense failed, the plaintiffs were entitled to judgment, whether partners or not, and that the defendants had the affirmative, and the right to open and close the case.

While the admission upon the trial of the nonpayment of the rent in suit, in connection with the stipulation as to the sum total of the plaintiff’s claim, with interest, may have been misleading, yet it was wholly unnecessary in view of the fact that the allegation had already been practically admitted by the defendant’s failure to deny it. Therefore it was immaterial, and did not affect the defendant’s right to the affirmative of the issue. These views entail a consideration of other points raised upon this appeal.

According to the lease, the plaintiff let to the defendant the premises in question, “for the purposes of her business, * * * with

The plaintiff argues that the jury were misled by the testimony adduced regarding the effect upon the movement of the defendant's machinery, which resulted from the failure to supply uniform power;, but, as such failure constituted a breach of the plaintiff’s contract, there was no reversible error in allowing the consequences of such breach to be shown.

The plaintiff urges that error is predicable upon the admission of testimony respecting the character of the defendant’s business, and the requirements thereof, so far as the machinery used therein is concerned; but, as seen, the premises in question were let to the latter “for the purposes of her business,” and hence the court below was justified in resorting to6 oral evidence upon these subjects for the purpose of ascertaining and explaining the intention of the parties.

. The plaintiff insists that it was not competent for the defendant to show a failure to supply steam power or heat during December, 1892, January, 1893, and February, 1893, as a justification for her removal from the demised premises in the latter part of April, 1893. We think, however, such testimony was- clearly admissible, under the authorities. Thalheimer v. Lempert (Sup.) 1 N. Y. Supp. 470 ; Tallman v. Murphy, 120 N. Y. 345 , 24 N. E. 716 ; Same v. Earle, 3 Misc. Rep. 76 , 23 N. Y. Supp. 17 .

There was ample evidence adduced to sustain the finding that the plaintiff failed to furnish, as required by the terms of the covenant on his part, “so- much heat as shall at all times be required” in her drying room; and, this considered, in connection with the fact, as found, that the plaintiff also failed to supply a uniform power, the defendant was justified in removing from the demised premises before the expiration of the said term. Koehler v. Scheider (Com. Pl.) 4 N. Y. Supp. 611 ; Lawrence v. Marble Co., 1 Misc. Rep. 105 , 106, 20 N. Y. Supp. 698 , and citations; 2 McAdam, Landl. & Ten. Supp. (2d Ed.) § 212.

“Q. Did you testify in the last trial as follows: ‘It sometimes happened that Mrs. Schneider’s belts slipped off the pulleys, and that Mrs. Schneider or Mr. Schneider called upon Mr. Trenkman to shut down because the belts had slipped off, and when Mr. Trenkman was thus called upon he did shut down. One cause of the slipping of the belts off the pulley was the slackness of Mrs. Schneider’s belts.’ Did you so testify? A. I don’t remember. Q. If you did so testify, was your testimony true? A. It was not. Plaintiff’s counsel: I now offer in evidence that part of his testimony at fol 146, which I have read.”

This was objected to by the defendant; the objection was sustained; and the plaintiff noted an exception.

While the plaintiff had a legal right, as claimed, to show that the testimony of the witness on the former trial was inconsistent with his testimony given upon the last trial, yet he could do so only by competent proof. The case on appeal, to which the offer is assumed to have referred, was not evidence of the facts therein contained. These could only he shown by a transcript of the minutes of the stenographer, supported by his oath upon the stand. As the objection was a general one, and a ground in fact existed for the exclusion, the ruling is to be upheld. Tooley v. Bacon, 70 N. Y. 34 , 37; Quinby v. Strauss, 90 N. Y. 664 ; McIlhargy v. Chambers, 117 N. Y. 532 , 542, 23 N. E. 561 ; Baylies, Tr. Prac. 202.

With respect to the plaintiff’s exceptions to the charge and refusals at his request, we are of the opinion that none of them present snScient ground for a reversal. The error, which it is claimed the court committed, in declining to charge plaintiff’s first request, was corrected by the charge, which was given immediately thereafter, of plaintiff’s second request.

Several other exceptions are referred to in the appellant’s brief, to which we have given attention; but, in our opinion, none of them are of sufficient importance to call for a reversal, and consequently the judgment should be affirmed, with costs. All concur.