Billington v. Richters

28 Misc. 769, 59 N.Y.S. 60

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1899
• Status: Published

Opinion

Leventritt, J.

The plaintiff leased through the defendant, acting as the agent , of one Finch, a house, business building and stable for a period of years at a stipulated annual rental. When the plaintiff went into possession,- one Thayer occupied the lower portion of the business building and thenceforth became the tenant of the plaintiff.

The defendant collected certain rents fropi Thayer which belonged to the plaintiff. These rents consisted of Thayer’s monthly installment and the income of certain lodgerooms in the business building.

The plaintiff claimed that the moneys collected by the defendant .-aggregated $132, while the latter insisted that they did not exceed $43.

- The plaintiff also, on some theory which is not apparent,'Sought a recovery of the further sum of forty dollars for four months’ use of the stable by Thayer, for which the latter admittedly paid no rent to anybody.

Judgment was rendered against the defendant for both items Maimed, in all, $172.

As to the first item, we do not hesitate to say that a perusal of the record induces some doubt whether the plaintiff is entitled to more than forty-three dollars. But as the amount collected was the subject of conflicting testimony, and as the justice enjoyed the opportunity — which an appellate court should not under■estimate — of testing the veracity of the witnesses and the truthfulness of their statements by their appearance and demeanor on the stand, we yield to his conclusions. Merely because we might Bave solved the conflict differently from the learned justice, we nre not warranted, in the absence of evidence indicating that injustice has been done, in interfering with his finding.

. We are of the opinion, however, that the allowance of the second item was error in law. There is not even a pretense of proof that the defendant collected any rent for the stable, or in anywise enjoyed its use. The respondent seems to argue that, be■cause the defendant wrongfully received and retained rents for the business building, he should also be charged with the rental value ■of the stable .which it is alleged Thayer occupied. We cannot follow that argument. The respondent’s remedy, if any, lies solely against Thayer. The judgment must be reduced to $132.

Judgment modified by reducing it to $132, and as modified affirmed, with $10 costs, besides disbursements, to the appellant.

Freedman, P. J., and MacLean, J., concur.

Judgment modified by reducing it to $132, and as modified affirmed, with $10 costs and disbursements.