Vogel v. Hemming — 84 N.Y.S. 473

Majority

p. 473

VOGEL v. HEMMING.

(Supreme Court, Appellate Term.

November 6, 1903.)

Headnote

1. Landlord and Tenant—Action to Recover Rent—Direction oe Verdict.

A complaint alleged a contract for the letting of an apartment to defendant at a yearly rental of $780, payable in monthly installments. The answer denied every material allegation of the complaint, alleged a surrender by the tenant and acceptance by the landlord, fraud in the pro

p. 474

eurement of the contract, and eviction by the landlord. The only evidence on the trial was the contract, which provided for an annual rental of $1,140, payable in monthly installments. There was nothing to show what was due, except an allegation in the complaint which was denied by the answer, for which alleged sum, however, the court directed a verdict for plaintiff. Held error.

3. Same—Evidence—Admissibility.

In an action to recover rent, it was error to exclude testimony tending to show surrender to and acceptance by the landlord of the premises, and also tending to show fraud and eviction by the landlord; such defenses being pleaded by the tenant.

Appeal from City Court of New York.

Action by Max Vogel against Henry G. Hemming. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

James, Schell & Elkus, for appellant.

C. D. Rogers, for respondent.

The complaint alleged a written contract between plaintiff and defendant for the letting of an apartment to the defendant, and the nonpayment of the rent by him. The answer alleged a surrender by the tenant and acceptance by the landlord of the premises, fraud in the procurement of the contract, and eviction by the landlord. The only evidence in the case is the written contract or lease, which provides for the letting of the premises for the term of one year at an annual rent of $1,140, payable in equal monthly payments in advance, amounting to $95 per month. The complaint alleges that the plaintiff rented the premises to the defendant at the yearly rent of $780 per year, payable in monthly installments of $65. Every material allegation of the complaint was denied by the answer, and how, under the pleadings and the proof offered, the court could direct a verdict for the plaintiff in the sum of $152.10, does not appear, and there is nothing in the record to show, except an allegation of the complaint, which was denied by the answer, why that sum, rather than some other sum, was not due.

Upon the evidence in the case, the court erred in directing a verdict. The court also erred in excluding testimony tending to show surrender by the tenant and acceptance of the premises by the landlord, and also tending to show frauds and eviction. These principles are so well settled that no citation of authority is deemed to be necessary.

The judgment and order must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.