Agress Construction Co. v. Jurgens

Appellate Terms of the Supreme Court of New York

Agress Construction Co. v. Jurgens

128 Misc. 12, 217 N.Y.S. 204, 1926 N.Y. Misc. LEXIS 1076

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 28, 1926

StatusPublished

Cited by1 cases

This text of 128 Misc. 12 (Agress Construction Co. v. Jurgens) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Agress Construction Co. v. Jurgens, 128 Misc. 12, 217 N.Y.S. 204, 1926 N.Y. Misc. LEXIS 1076 (N.Y. Ct. App. 1926).

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Opinion

Per Curiam.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant to abide tne event, and motion denied, with ten dollars costs.

There is nothing to show when the defendant’s term ended, and as he moved out on May twenty-ninth, there is no basis shown for the recovery of the June rent. According to the defendant’s affidavit the May rent was paid by the plaintiff's accepting and using the security which the defendant had previously put up, the use of the security for this purpose being by agreement between the parties. While the defendant has pleaded only a general denial and has not pleaded payment, or surrender and acceptance, still where facts are shown in an affidavit opposing a motiSn for summary judgment which would constitute a defense if properly pleaded, the motion cannot prevail. (Curry v. Mackenzie, 239 N. Y. 267; Melcher, Inc., v. Graziano, 212 App. Div. 589.)

There is nothing to show that the lease was a part of the motiqn papers. But if it was it does not help the plaintiff. On the face of the lease its term of ending is not stated. The provision in it to the effect that no surrender of the premises shall arrest the payment of rent, unless the surrender be accepted in writing by the landlord, does not prevent acceptance and surrender without a writing by the landlord. This provision may be waived by the latter.

Present, Cropsey, MacCrate and Lewis, JJ.

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Per Curiam.

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellant to abide tne event, and motion denied, with ten dollars costs.

There is nothing to show when the defendant’s term ended, and as he moved out on May twenty-ninth, there is no basis shown for the recovery of the June rent. According to the defendant’s affidavit the May rent was paid by the plaintiff's accepting and using the security which the defendant had previously put up, the use of the security for this purpose being by agreement between the parties. While the defendant has pleaded only a general denial and has not pleaded payment, or surrender and acceptance, still where facts are shown in an affidavit opposing a motiSn for summary judgment which would constitute a defense if properly pleaded, the motion cannot prevail. (Curry v. Mackenzie, 239 N. Y. 267; Melcher, Inc., v. Graziano, 212 App. Div. 589.)

There is nothing to show that the lease was a part of the motiqn papers. But if it was it does not help the plaintiff. On the face of the lease its term of ending is not stated. The provision in it to the effect that no surrender of the premises shall arrest the payment of rent, unless the surrender be accepted in writing by the landlord, does not prevent acceptance and surrender without a writing by the landlord. This provision may be waived by the latter.

Present, Cropsey, MacCrate and Lewis, JJ.

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128 Misc. 12, 217 N.Y.S. 204, 1926 N.Y. Misc. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agress-construction-co-v-jurgens-nyappterm-1926.

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