Bon v. Fenlon

89 N.Y.S. 961, 97 A.D. 635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1904
• Status: Published

Opinions

WOODWARD, J.

Upon a previous appeal in this case (88 App. Div. 612, 84 N. Y. Supp. 858) we held that the defendant occupied the premises of the plaintiff at will; that he could terminate his tenancy at any time; and that there was nothing due for the months of June, July, August, and September, 1902, the defendant having vacated the premises in May. On the case coming on for a new trial the plaintiff adopted a new theory, and attempted to recover the amount of rent alleged to have been earned during the time the tenant was in possession at the rate of $900 per year. That is, on this appeal it is claimed that the terms of the contract called for the payment of rent at the rate of $900 per year, the plaintiff being in possession for eight months at $75 per month, making a total charge of $600, on which payments had been made aggregatihg $533, leaving an unpaid balance of $66.66; and it is urged, the plaintiff showing assignments of any rents which might have been due his predecessors in title, that because the trial court failed to give judgment for this amount the judgment should be reversed.

We are of opinion that this contention was without merit. The scheme under which the defendant occupied the premises was designed to conve)' the impression that the apartments under consideration rented for $1,100 per year. To this end it appears to have been arranged that the defendant should pay a small amount early in the year, and then to make payments at the rate of $91.67 per month for the remainder of the time, so that, if the year was completed, it would amount to the sum of $900. The defendant, whose tenancy under this arrangement began in October, paid $75 on the 8th of that month. He paid no more until January, and from that time to the termination of his tenancy in May he gave five checks for $91.67 each; and there is no reason to doubt, under the conceded facts in "this case, that these various checks were received in full payment of the rents due at the several periods when the checks were given, so that the assignments in evidence conveyed no rights to the plaintiff, who is, with his predecessors in title, the victim of the sharp practice, which undertook to give a fictitious value to the premises involved. The defendant paid all of the rent which he was under any obligations to pay under the terms of his agreement, and if he is benefited by reason of the secret contract it is not for this court to interfere in behalf of those who claim rights under the same agreement on the ground that it was collusive or intended to defraud. The plaintiff in this action can have no better standing than those under whom he claims title, and the evidence shows that the defendant has discharged all of his obligations.

The judgment appealed from should be affirmed, with costs.

HIRSCHBERG, P. J., and JENKS, J., concur. BARTLETT, J., concurs in result.