p. 649Alice Cairnes, Resp’t, v. Emanuel Walter, Appl’t.(New York City Court, General Term,Headnote
Pleadings—Demurrer.In determining the correctness of a decision overruling a demurrer interposed to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, the whole complaint must he considered.
Appeal from an order overruling a demurrer to the complaint.
Marcus Newburg for appl’t, L. B. Beclcley for resp’t.
The appellant demurs to plaintiff’s complaint on the ground that it fails to state facts sufficient to constitute a cause of action. This was overruled. In determining the correctness of this ruling and the sufficiency of this pleading, the whole complaint must be considered. This is not an action for damages by reason of any breach of a covenant in the lease but for damages by reason of a breach of the agreement which induced the making of the lease, to wit.—That the defendant knowing the promises were untenantable, and uninhabitable would put the same in proper condition, that believing and relying on such representations and promise, the plaintiff was induced to and did make, accept and enter into and under such lease and
p. 650paid and continued to pay rent until July, relying on the promises of the defendant to do as he agreed to do. The consideration for such work was the making of the lease, see
Cartledge v. Crespo, 5 Misc. Rep. 349 -351; 55 St. Rep. 161 ;
Reynolds v.
Robinson 110 N. Y. 654 ; 18 St. Rep. 235 . We think the complaint while not drawn in the most artistic manner, yet, when taken as a whole, fairly states a cause of action and that the demurrer was properly overruled. The defendant in our opinion has misunderstood the cause of action set forth in the complaint. The order overruling demurrer should be affirmed with leave however to the defendant to answer within ten days on payment of the costs of appeal.
Yak Wyck and Hewburger, JJ, concur.