Dresner v. Fredericks

91 A.D. 224, 86 N.Y.S. 589

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1904
• Status: Published

Opinions

Van Brunt, P. J. :

This action was brought to recover from the defendant rents from the month of June to the month of October, 1899, as assignee of the lease of premises on Third avenue in the city of Hew York. The lease was made by one Seymour Myers to one Herman Greit- ■ ner, and was assigned by the lessee to one Frederick Hollander, who on May 25, 1898, assigned said lease to the defendant. •

The complaint alleged that between the 25th of May, 1898, and the 6th of October, 1899, the defendant occupied thé demised premises. The defendant by his answer admitted all the allegations •of the complaint, except as to his occupancy of the premises from May 25, 1898, to October 6, 1899, and alleged as a defense that on the 25th of April, 1899, he duly assigned the lease in question to •one Keuling and delivered the same and the possession of the premises to said Keuling on that day, and the question submitted to the jury was whether the defendant upon the assignment of the lease to Keuling surrendered the possession to him, or whether Keuling’s possession was merely as the agent of the defendant, so that the defendant, notwithstanding the assignment of the lease to Keuling, remained in possession of the premises.

It appears that during the time in which Fredericks was assignee ■of the lease, prior to the 25th of April, 1899, Keuling was in possession of the premises, but the rent thereof was paid by the defendant Fredericks. And it was claimed upon the part of the plaintiff that the possession was not in any manner changed, but that Kueling was in possession as agent of Fredericks after April 25,1899, as he had been prior to that time.

The defendant Fredericks testified that he assigned the lease to Keuling on the -25th of April, 1899, and that he delivered possession to him at that time. There was some testimony offered of a conversation between Fredericks and one Bernstein who was the •agent of the landlord of the premises in Third avenue. This conversation took place about the 1st of May, 1899, and was in respect to the rent which was then due. Bernstein testified that Fredericks said to him that he should go up to the premises on Third avenue and he would get his rent from his (Fredericks) agent; Mr. Keuling; that he went there and did not get his rent; that he went back to Mr. Fredericks, who said, “ G-o back there again and I will have it sent up there ; ” that he went back there again and got itthat was the first week in May. There was also introduced in evidence an •application made by Fredericks on the 26th of April, 1899, for a liquor tax certificate, in which he stated that he was the only person interested in the business under the certificate thereby applied for, and that the business was to be carried on upon the premises in -question.

The defendant offered evidence that he was not in possession of the premises at all after the assignment óf the lease to Keuling;; that Keuling was carrying on the business there on his own account,, and that he had nothing whatever to do with it.

On this evidence the question was submitted to the jury as to whether Keuling occupied the premises only,as the agent of, Fredericks. Updn this issue the jury found a verdict in favor of the; plaintiff.

We think upon this evidence that the question was properly submitted to the jury, and that the motions upon the part of the defendant to dismiss the complaint at the end of' the case, and that the? court should direct a verdict in his favor upon the ground that, after delivering up possession of the demised premises and the assignment of the lease there was no liability whatever on the part of the defendant, were properly denied, there being evidence tending to show that Keuling’s possession was in reality that of the» defendant Fredericks.

The judgment and order appealed from should be affirmed, with; costs.

McLaughlin, Hatch and Laughlin, JJ., concurred; Ingraham,, J., dissented.