Littman v. Coulter — 40 N.Y. St. Rep. 871

Majority

p. 871

Morris Littman, App’lt, v. Mary M. Coulter, Adm’rx, Resp’t.

(City Court of New York, General Term,

Filed October 29, 1891,)

Headnote

Landlord and tenant—Evidence.

Pending proceedings to relieve plaintiff from a purchase at a judicial sale of the premises in question, which were occupied by defendant’s intestate, a receiver of rents was appointed by agreement. In an action for rent the defense was that defendant’s intestate was to occupy during the period in question without paying rent, and defendant testified to such an arrangement. Held, that it was proper for plaintiff to contradict such testimony by the receiver,.and the exclusion of his testimony was error.

Appeal from judgment in favor of defendant.

Adolph L. Sanger, for app’lt; Wm. L. Flagg, for resp’t.

This action is brought to recover rent of certain premises in this city, for the months of July, August, September and October, 1886. In 1883, Vernon. K. Stevenson let to the defendant’s intestate part of the premises on the southeast corner of Fifty-ninth street and Fifth avenue, under a yearly lease, at a rental of $165 per month.

Stevenson having died, partition proceedings were instituted, and this property was sold to the plaintiff in February, 1886.

At that time defendant’s intestate still continued and was in possession of the premises.

The plaintiff did not take title immediately, he claiming that there appeared some defects therein, and proceedings were instituted to relieve him of such purchase.

Pending such proceedings, the parties to the partition suit and plaintiff entered into an agreement appointing one Richard H. Barker as receiver of the rents in the meantime, and the defendant’s intestate continued to pay the rent up to and including the month of June, 1886. The answer of the defendant admits that her intestate was in possession until October 1, 1886, but claims that he was to pay no rent during such period, and also alleges a counterclaim for conversion of certain personal property.

On the trial of this action Richard H. Barker was asked:

Q. Did Mr. Hugh Stevenson ever tell you in any way, shape, manner or form, when he paid you the rent, as you say he did, that Mr. Coulter was to continue there, without paying rent, free of charge? Objected to. Objection sustained. Exception.

Q. Did you receive any word from Mr. Littman, authorizing you to let Mr, Coulter continue in those premises, free of charge ? Same objection, ruling and exception.

We think the trial justice erred in excluding this testimony.

p. 872

The defense was that Coulter was to remain on the premises without paying rent, and defendant was permitted to testify to such an arrangement j it was, therefore, proper on the part of the plaintiff to contradict any such testimony by the person chosen as trustee of the rents. *

Without considering any other questions raised by appellant’s counsel, the judgment must be reversed and a new trial granted, with costs.

Ehrlich, Ch. J., concurs.