Majority
p. 500NEGLIA et al. v. LIELOUKA. (Supreme Court, Appellate Term. June 28, 1900.) Argued before TRUAX, P. J., and SCOTT, and DUGRO, JJ.
Headnote
Landlord and Tenant—Breach on Agreement.Where, in an action for damages, the evidence showed that defendant agreed to fix the roof if plaintiff stayed, and plaintiff stayed, but. defendant failed to fix the roof within a reasonable time, and that by this fault plaintiff was damaged, the complaint should not have been dismissed.
Appeal from municipal court of city of New York.
Action by Michael Neglia and Nicholas Neglia against Theodore Y. Lielouka for damages. From a judgment dismissing the complaint, plaintiffs appeal.
Reversed.
Herman A. Brand, for appellants.
Don R. Almy, for respondent.
As the evidence showed that defendant agreed to fix the roof if plaintiffs stayed, and that plaintiffs stayed, but defendant failed to fix the roof within a reasonable .time, and that by-this fault of the defendant the plaintiffs were damaged as claimed, the complaint should not have been dismissed. As it does not appear that
p. 501
the plaintiffs had concluded their case on any question, except that of defendant’s negligence, at the time of the dismissal, it is not necessary to consider the question of contributory negligence.
Judgment reversed and new trial ordered, with costs to appellants to abide the event.