Butler v. Carillo

Appellate Terms of the Supreme Court of New York

Butler v. Carillo

88 N.Y.S. 941

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1904

StatusPublished

Cited by4 cases

This text of 88 N.Y.S. 941 (Butler v. Carillo) 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

Butler v. Carillo, 88 N.Y.S. 941 (N.Y. Ct. App. 1904).

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Opinion

MacLEAN, J.

When the plaintiff rested in his action for rent, a nonsuit would have been proper, for nonpayment was not established; but, the defendant proceeding, the plaintiff had right to rely upon the statement of the defendant that the rent sued for had not been paid. Bopp v. N. Y. Electric Vehicle Co., 78 App. Div. 337, 79 N. Y. Supp. 1035. Even assuming that the facts testified to were at one time sufficient to constitute a constructive eviction, for defense they were ineffectual, for “where the right to abandon premises exists the tenant must remove with reasonable promptitude after the circumstances creating the eviction arise, and, if he fails to do só, his right to repudiate the hiring is lost.” Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109, 111, 67 N. Y. Supp. 146, 147. The verdict was therefore properly directed, and the judgment entered thereon must be affirmed. Judgment affirmed, with costs. All concur.

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MacLEAN, J.

When the plaintiff rested in his action for rent, a nonsuit would have been proper, for nonpayment was not established; but, the defendant proceeding, the plaintiff had right to rely upon the statement of the defendant that the rent sued for had not been paid. Bopp v. N. Y. Electric Vehicle Co., 78 App. Div. 337, 79 N. Y. Supp. 1035. Even assuming that the facts testified to were at one time sufficient to constitute a constructive eviction, for defense they were ineffectual, for “where the right to abandon premises exists the tenant must remove with reasonable promptitude after the circumstances creating the eviction arise, and, if he fails to do só, his right to repudiate the hiring is lost.” Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109, 111, 67 N. Y. Supp. 146, 147. The verdict was therefore properly directed, and the judgment entered thereon must be affirmed. Judgment affirmed, with costs. All concur.

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88 N.Y.S. 941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-carillo-nyappterm-1904.

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