Hurlimann v. Seckendorf — 46 N.Y. St. Rep. 301

Majority

p. 301

Gustav Hurlimann, App’lt, v. Isaac Seckendorf et al., Resp’ts.

(City Court of Brooklyn, General Term,

Filed April 25, 1892.)

Headnote

1. Pleading—Demurrer.

A demurrer to a defense of breach of warranty on the ground that it is insufficient in law on the face thereof, because founded on an oral contract of warranty, is bad where the face of the pleading does not disclose that the warranty was oral.

2. Same—Fraud.

A defense in an action for rent which alleges that plaintiff made false representations, known to him to be false, with intent to induce defendant to take a lease, and that defendant relying thereon was induced to take such lease, Reid, on demurrer, sufficient to set forth a defense founded on deceit.

Appeal from interlocutory judgment overruling demurrer to new matter set up as a defense, and to two counterclaims for damages.

Action for rent. The second defense, which was demurred to, alleged that plaintiff, with the intent to induce the defendants to rent the premises in the complaint mentioned, “ did falsely and knowingly warrant and represent to' the defendants that the premises in the complaint mentioned were and that they would continue to be free from all dampness and moisture, and that they were and would continue to be thoroughly dry and that said premises were and would continue to be adapted for the purposes of defendants’ said business as aforesaid, and of such a character that the defendants could well and properly conduct their said business and manufacturing process therein, and these defendants relying upon and believing in the said representation and warranty of the plaintiff, were induced to make and then did make and enter into the aforesaid lease, and did enter into possession of the demised premises, and they would not have done so but for said representation and warranty.’’ ■ And further, that as a result of the aforesaid warranty and false representations, the defendants, before the rent claimed in the complaint became due, did elect to rescind the aforesaid agreement, and on or about September 1, 1890, they vacated and surrendered to plaintiff the demised premises.

p. 302

James G. Foley (Henry A. Powell, of counsel), for app’lt; M. S. & I. S. Isaacs (A. L. Sanger, of counsel), for resp’ts.

Plaintiff leased premises to defendants for twenty-three months from June 1, 1890. This is an action to recover a month’s rent falling due September 1, 1890. The answer contains seven defenses, separately numbered. A demurrer was interposed to the second of these, “on the ground that it is insufficient in law on the face thereof.” Plaintiff frankly takes the position that this defense is founded solely on an oral contract of warranty of the condition of premises demised in the written lease, and proof of it is inadmissible. The face of the pleading does not disclose that it was oral; therefore the demurrer is bad. He also insists that if the words of contract are eliminated, a defense founded on deceit is not set forth. We entertain a different opinion, for it is alleged plaintiff made certain false representations, known to him to be false, with intent to induce defendant to take the lease of the premises, and relying thereupon was induced to take a lease, which he otherwise would not have done. It is not necessary for us to determine whether there are two defenses pleaded in this “second” defense, one on contrast and the other for deceit, and if only one, whether it is the former or the latter, for in either case the demurrer is bad. What has been said with regard to the “ second ” will apply with the same force to the demurrer to the “ fifth ” and “ sixth ” defenses. Judgment must be affirmed, with costs of appeal, and with leave, on payment of such costs, and thirty-five dollars costs allowed in the judgment within twenty days after service of order of affirmance, to withdraw demurrer -to counterclaim and reply to same.

Osborne, J., concurs.