Brundage v. Marshall

134 N.Y.S. 592

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 21, 1912
• Status: Published

Opinion

BIJUR, J.

The action is for rent due qn the 1st days of February to September, 1911, inclusive, aggregating $1,000. The allegations of the answer, which the witness’ testimony is expected to support (folios 17 and 18) are the fourth, fifth, seventh, eighth, and the whole counterclaim. The fourth alleges that plaintiff has refused to perform covenants of the lease by him to be performed. The fifth denies that defendant has failed to pay the rent, and alleges that, “if she has,” she did it for good cause. The seventh and eighth allege that she stored some of her property in the. storeroom of plaintiff’s apartment house, and that it was lost through plaintiff’s negligence. The counterclaim is for the loss of these goods.

[1] Plaintiff seems to rely upon two contentions, namély, that the application is not made in good faith and solely for the purpose of delay, and that the answer and counterclaim are insufficient in law and not maintainable, respectively. I do not think that the bad faith of the defendant so clearly appears, and in that regard the giving of the bond hereinafter referred to must be taken into consideration.

[2] In respect of the merit of the answer, it suffices to say that many of the objections urged by plaintiff are such as should have been presented by demurrer, and in any event they are not such as should be held determinative of this application in the present stage of the litigation. From the affidavit in opposition, verified November 14* 1911, it appears that the case, having been noticed in October for the short cause calendar, was, at the time of the motion, actually marked-ready at the Trial Term, and that applications for adjournment for alleged absence of -witnesses had been denied. Defendant, on the other hand, swears that she had been unable to locate this witness, who lives in Greene county, until the very day on which she made the application for the commission. Pending the appeal, the stay in the original order to show cause has been continued by this court upon defendant’s giving an adequate bond to secure plaintiff’s possible recovery.

Under the circumstances, it seems but proper that the order denying the motion for a commission and dissolving the stay should be reversed, and the commission granted, upon the giving and continued effectiveness of the bond, with leave to plaintiff to apply for such relief as he may be advised, if the execution of the commission be not-proceeded with promptly by the defendant, and with $10 costs of the motion to plaintiff. No costs of appeal. All concur.