Cole v. Sanford

New York Supreme Court

Cole v. Sanford

28 N.Y.S. 353, 77 Hun 198, 84 N.Y. Sup. Ct. 198, 59 N.Y. St. Rep. 763

CourtNew York Supreme Court

DecidedApril 13, 1894

StatusPublished

Cited by3 cases

This text of 28 N.Y.S. 353 (Cole v. Sanford) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cole v. Sanford, 28 N.Y.S. 353, 77 Hun 198, 84 N.Y. Sup. Ct. 198, 59 N.Y. St. Rep. 763 (N.Y. Super. Ct. 1894).

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Opinion

FOLLETT, J.

The right by which the. plaintiff claims to have occupied the premises is not set forth in his complaint, but it appears by the answer and the concessions on the trial that he was a lessee. By these concessions it appears that his lease expired on the 1st day of May, 1891, and that he paid, and Taylor accepted, $333.33, the rent for that month, but the circumstances under which the payment was made are not disclosed by the concessions nor by the evidence. The landlord having permitted the tenant to occupy the leased premises after the expiration of the term, and having accepted a month’s rent from him at the rate stipulated in the lease, a presumption is raised that the lease had been renewed for another year. Clarke v. Howland, 85 N. Y. 204; Schuyler v. Smith, 51 N. Y. 309; Laughran v. Smith, 75 N. Y. 205; 4 Kent, Comm. (13th Ed.) 114, note x; Wood, Landl. & Ten. 76.

The complaint in the action for rent brought in the city court of Brooklyn contains allegations which, if they had been established, would have constituted a defense to this action, provided the eviction was effected at the proper time and in the proper manner; but that complaint, though introduced in evidence, is no evidence of the truth of the allegations therein contained. The rent for [355]*355June and July, 1891, fell due on the 1st days of those months; so there was, by the terms of the lease, two months’ rent due when the tenant was evicted, and it is well settled that an unlawful eviction is not a defense. We are not spealdng of counterclaim to an action brought for the recovery of the rent due and payable before the eviction. Giles v. Comstock, 4 N. Y. 270; O’Brien v. Smith (Sup.) 13 N. Y. Supp. 408. And the fact that the tenant, after his eviction, paid rent up to the date thereof, does not rebut the presumption that he was entitled to occupy the premises for another year. The presumption that the lease was renewed for another year, arising from permitting the tenant to hold over and accepting rent from him, is a rebuttable one, and it may be that the defendants, on a new trial, will be able to show that the plaintiff held over under terms justifying their testator in evicting him; but nothing of the kind was shown on this trial, and the plaintiff’s exceptions must be sustained, and his motion for a new trial granted, with costs to him, to abide the event. All concur.

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FOLLETT, J.

The right by which the. plaintiff claims to have occupied the premises is not set forth in his complaint, but it appears by the answer and the concessions on the trial that he was a lessee. By these concessions it appears that his lease expired on the 1st day of May, 1891, and that he paid, and Taylor accepted, $333.33, the rent for that month, but the circumstances under which the payment was made are not disclosed by the concessions nor by the evidence. The landlord having permitted the tenant to occupy the leased premises after the expiration of the term, and having accepted a month’s rent from him at the rate stipulated in the lease, a presumption is raised that the lease had been renewed for another year. Clarke v. Howland, 85 N. Y. 204; Schuyler v. Smith, 51 N. Y. 309; Laughran v. Smith, 75 N. Y. 205; 4 Kent, Comm. (13th Ed.) 114, note x; Wood, Landl. & Ten. 76.

The complaint in the action for rent brought in the city court of Brooklyn contains allegations which, if they had been established, would have constituted a defense to this action, provided the eviction was effected at the proper time and in the proper manner; but that complaint, though introduced in evidence, is no evidence of the truth of the allegations therein contained. The rent for [355]*355June and July, 1891, fell due on the 1st days of those months; so there was, by the terms of the lease, two months’ rent due when the tenant was evicted, and it is well settled that an unlawful eviction is not a defense. We are not spealdng of counterclaim to an action brought for the recovery of the rent due and payable before the eviction. Giles v. Comstock, 4 N. Y. 270; O’Brien v. Smith (Sup.) 13 N. Y. Supp. 408. And the fact that the tenant, after his eviction, paid rent up to the date thereof, does not rebut the presumption that he was entitled to occupy the premises for another year. The presumption that the lease was renewed for another year, arising from permitting the tenant to hold over and accepting rent from him, is a rebuttable one, and it may be that the defendants, on a new trial, will be able to show that the plaintiff held over under terms justifying their testator in evicting him; but nothing of the kind was shown on this trial, and the plaintiff’s exceptions must be sustained, and his motion for a new trial granted, with costs to him, to abide the event. All concur.

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Bluebook (online)

28 N.Y.S. 353, 77 Hun 198, 84 N.Y. Sup. Ct. 198, 59 N.Y. St. Rep. 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-sanford-nysupct-1894.

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