Goldberg v. Lavinski — 51 N.Y. St. Rep. 605

Majority

p. 605

Hattie Goldberg, Resp’t, v. Louis J. Lavinski, App’lt.

(New York Common Pleas, General Term,

Filed March 6, 1893.)

Headnote

1. Lease — Statute op frauds.

An oral lease for a year to commence in futuro is valid.

2. Same — Evidence.

Evidence that defendant a month after the alleged date of a lease, contracted for the purchase of other premises is immaterial and inadmissible on the question whether such lease was made.

Appeal from judgment of a district court, on trial by the justice.

Abraham Nelson, for appl’t; Isidor Hershfield, for resp’t.

Action for two months rent under an alleged lease for a year.

The defendant denies a letting for a year; but the court found the fact against him; and as the evidence was conflicting and quite evenly balanced, we are not authorized to reverse the judgment for deficiency of proof.

The defendant essayed to dispute the title under which he took possession; but from this escape he was precluded by a familiar principle.

Again, the defendant urges the invalidity of an oral lease for a year to commence in the future; but he failed to plead the statute of frauds, and if he had, the defense would have been unavailing. Young v. Lake, 5 N. Y., 463 ; Taggard v. Roosevelt, 2 E. D. Smith, 100.

Yet again, appellant interposes a surrender of his term; but no such defense appears to have been hinted on the trial by plea or proof; nor do the facts in evidence support it.

To disprove the agreement for a lease in February, 1892, defendant offered to show that in March, 1892, he contracted for the purchase of other property ; but of what force is the latter fact in negation of the former ? And, upon what principle may a party adduce his own act as evidence against his .adversary? It was

p. 606

not of the res gestee, nor was the plaintiff privy to it. Tender of the proof was properly rejected.

We see no ground upon which the judgment may be disturbed.

Judgment affirmed, with costs.

Bischoff, J., concurs.