Havemeyer v. Switzer — 72 N.Y. St. Rep. 705

Majority

p. 705

Thomas A. Havemeyer, Resp’t, v. Walter E. Switzer, App’lt.

(New York City Court, General Term,

Filed February 7, 1896.)

Headnote

Pleadings—Complaint—Lease.

In an action brought on an express covenant to pay rent, the landlord need not allege in his complaint, or prove, that the tenant occupied or enjoyed the premises, or the ownership of the premises let.

Appeal from a judgment in favor of plaintiff,

Josiah T. Lovejoy, for app’lt; Allan Lee Smidt, for resp't.

— This is an appeal from a judgment entered on an order overruling the defendant's demurrer to plaintiff’s complaint as frivolous, and from said order. The action is brought on an express covenant to pay rent. In such an action, the plaintiff need not allege in his complaint, or prove, that defendant occupied or enjoyed the premises, or the ownership of the premises let. Gilhooley v. Washington, 4 N. Y. 217 .

Otherwise in an action for use and occupation. Defendant claims that plaintiff should have alleged in his complaint a performance of all the conditions of the contract on his part, pursuant to section 533 of the Code, and citing Bogardus v. Insurance Co., 101 N. Y. 328 ; but he fails to perceive that there are no conditions of the contract set up in the complaint. The contract of letting and hiring, and the agreement to pay rent, merely, are set forth. The weak point in plaintiff’s complaint is the fact that the term is. not definitely stated, but with reasonable certainty it can be inferred therefrom that the term was for a year and commenced on May 1,1994.

Order and judgment appealed from affirmed, with costa

Cases cited

Gilhooley v. Washington 4 N. Y. 217 N.Y. p. 705
Bogardus v. New York Life Insurance 101 N. Y. 328 N.Y. 1886-01-19 p. 705