Nicoll v. Hyman — 57 N.Y. St. Rep. 542

Majority

p. 542

Donald Nicoll, Resp’t, v. Fanny Hyman, Appl’t.

(New York Common Pleas, General Term,

Filed February 5, 1894.)

Headnote

1. Lease—Guaranty.

A renewal agreement, endorsed upon the lease and signed by the guarantor, is sufficient to constitute a guaranty for the renewed term.

2. Appeal—Discretion.

A motion to amend an answer upon the trial is addressed to the discretion of the court and not reviewable.

Appeal from a judgment of the district court in the city of New York for the eighth judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.

Action by landlord against guarantee of payment under lease, to recover rent due upon renewed lease, such renewal being endorsed upon the original instrument in the following terms: “ The within lease is hereby continued in force for one year to commence on the first day of February, 1892, at noon and'to end on the first day of February, 1893, at noon, at the yearly rental of seven hundred and twenty ($720) dollars, payable monthly in advance as within specified and otherwise upon the same terms, provisions, covenants and conditions continued in the within lease.

Dated January 22, 1892. Fanny Hyman,

Witness: O. T. Higgins. S. Hyman.

In the original lease Isadore.Hyman is described as tenant and the defendant as surety, the guaranty being as follows: “ The premises being rented at the request of Mrs. Fanny Hyman as

p. 543

surety the latter agrees in consideration oí the said letting, that the tenant shall pay the rent and perform the agreement, on his part above written.” The lease is signed by said Isadore Hyman, the plaintiff and the defendant.

S. F. Hyman, for appl’t; Theall & Beam, for resp’t.

The evidence shows that possession was had under the lease during the period for which the rent is demanded. Ro express surrender is proven and we are concluded, in this case, by the finding of the justice that there was no constructive eviction. Weiss v. Strauss, 39 St. Rep., 78 . The principal ground urged by the appellant for reversal relates to the insufficiency of the renewal agreement, endorsed upon the lease, to constitute a guaranty by the defendant for the renewed term. The proposition is not to be supported. Apart from the statute of frauds by pleading, the guaranty is sufficient, as to subject, parties and consideration, by intrinsic reference to the lease renewed. Marston v. French, 17 N. Y. Supp., 509 ; 43 St. Rep., 538 . It is signed by the party to be charged. Ro reduction of the rent was properly to be allowed by reason of the fire which occurred ; this was pleaded as matter of defense merely, and, as above shown, the determination adverse to such defense must stand. The motion to amend the answer upon the trial, for the purpose of demanding damages in that regard, was of a nature which addressed itself to the justice’s discretion in this instance, Tattersall v. Hass, 1 Hilt., 56, and, therefore, is not to be reviewed. Rosenwald v. Hammerstein, 12 Daly, 379 .

The right to relet under the sixth clause of the lease, with respect to defaults, was optional with the landlord and did not involve a duty to the tenant. In view of the evidence, the fact that the rent for the latter part of the month of Rovember, after the fire, was remitted, did not necessitate a finding that the lease was thereby terminated. An examination of the exceptions appearing upon the record discloses no error prejudicial to the appellant.

Judgment affirmed, with costs.