Cohen v. Frankel

Appellate Terms of the Supreme Court of New York

Cohen v. Frankel

152 N.Y.S. 1018

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 6, 1915

StatusPublished

This text of 152 N.Y.S. 1018 (Cohen v. Frankel) 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

Cohen v. Frankel, 152 N.Y.S. 1018 (N.Y. Ct. App. 1915).

Pincite

Opinion

PENDLETON, J.

The action is for rent for January, 1915, under a three-year lease from February 1, 1914. The answer denied nonpayment ; alleged, as an affirmative defense, that the tenant had deposited with the landlord $1,000 as security for the rent, that dispossess proceedings had been brought and a final order entered, and that before the issuance of the warrant it was agreed defendant should give up possession, and plaintiff might and should apply to the payment of the January rent part of the deposit, and that in pursuance thereof defendant did surrender possession; and alleged that thereby the said rent had been paid. The court at the trial, before the taking of any testimony, directed a verdict for plaintiffs on the pleadings.

[1019]*1019[1-3] It needs no argument to show that to support such action the pleadings alone must be looked at, and yet it is evident from the record that the court acted, not on the pleadings alone, but on the terms of the lease, which was not before the court. The court evidently proceeded on the theory that, as the lease provided that the tenant’s liability should survive dispossess proceedings, there was no consideration for the agreement alleged in the answer. However this may be, the lease was not before the court, so that the ruling was, on that account, if no other, error. The agreement by defendant to forego the right to redeem, to give up possession without, or before, issuance of the warrant, and allow the deposit to be applied to pay the whole January rent, even for the period subsequent to the date of the final order, and giving up possession, were, under the circumstances appearing by the pleadings, all good considerations for the agreement. The answer, therefore, alleged a valid agreement to apply part of the deposit to the payment of the rent sued for, and performance of his part of the agreement by defendant. This, for the purposes of the motion, must be assumed to be true, and, if true, the facts constituted a defense.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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PENDLETON, J.

The action is for rent for January, 1915, under a three-year lease from February 1, 1914. The answer denied nonpayment ; alleged, as an affirmative defense, that the tenant had deposited with the landlord $1,000 as security for the rent, that dispossess proceedings had been brought and a final order entered, and that before the issuance of the warrant it was agreed defendant should give up possession, and plaintiff might and should apply to the payment of the January rent part of the deposit, and that in pursuance thereof defendant did surrender possession; and alleged that thereby the said rent had been paid. The court at the trial, before the taking of any testimony, directed a verdict for plaintiffs on the pleadings.

[1019]*1019[1-3] It needs no argument to show that to support such action the pleadings alone must be looked at, and yet it is evident from the record that the court acted, not on the pleadings alone, but on the terms of the lease, which was not before the court. The court evidently proceeded on the theory that, as the lease provided that the tenant’s liability should survive dispossess proceedings, there was no consideration for the agreement alleged in the answer. However this may be, the lease was not before the court, so that the ruling was, on that account, if no other, error. The agreement by defendant to forego the right to redeem, to give up possession without, or before, issuance of the warrant, and allow the deposit to be applied to pay the whole January rent, even for the period subsequent to the date of the final order, and giving up possession, were, under the circumstances appearing by the pleadings, all good considerations for the agreement. The answer, therefore, alleged a valid agreement to apply part of the deposit to the payment of the rent sued for, and performance of his part of the agreement by defendant. This, for the purposes of the motion, must be assumed to be true, and, if true, the facts constituted a defense.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

152 N.Y.S. 1018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-frankel-nyappterm-1915.