Duncan v. Givens

Appellate Terms of the Supreme Court of New York

Duncan v. Givens

123 Misc. 392, 205 N.Y.S. 441

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 24, 1924

StatusPublished

This text of 123 Misc. 392 (Duncan v. Givens) 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

Duncan v. Givens, 123 Misc. 392, 205 N.Y.S. 441 (N.Y. Ct. App. 1924).

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Opinion

Levy, J.

This proceeding was instituted by the landlord to recover possession of an apartment in the premises known as No. 39 West One Hundred and Thirty-third street, in the borough of Manhattan, upon the ground that the landlord was a natural person, and required such possession for her own immediate and personal use and occupancy both for herself and family for dwelling purposes, in good faith. The tenant resisted this and relied upon the fact that the landlord owned property immediately contiguous in which she and her family were dwelling and also urged the claim that the landlord sought from him an increase in rental which he declined. This practically constitutes the entire issue of good faith and the jury after trial determined it in favor of the tenant.

The facts, briefly, seem to indicate, while the landlord ostensibly holds the title to the adjoining property in which she now lives, the same was purchased by her not for her own benefit but out of funds received from the Chesapeake and Ohio Railroad Company in payment of damages for the death of her brother who was killed in a railroad accident; that the widow and orphans of such deceased brother were to receive the issues and profits from such property and to otherwise have the use of such premises. These children resided with the appellant until two of them were married and due to certain discord occurring between them and her husband caused them to remove into other premises. They desire to obtain possession of the house thus purchased for them and so advised their aunt, and she, wishing to let them have it, sought possession of the apartment now occupied by this tenant. Seeking to avoid inconvenience to the latter the appellant offered the tenant another apartment in these premises at what she considered a fair and reasonable rental, which the tenant refused. .This, it seems to us, cannot constitute a successful attack upon the good faith of the landlord and we feel, therefore, that the jury has improperly determined the issue. Its verdict to clearly contrary to the evidence and the weight thereof.

Final order reversed and new trial ordered, with ten dollars costs to the appellant to abide the event.

Bijur and Mullan, JJ., concur.

Order reversed and new trial ordered.

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Levy, J.

This proceeding was instituted by the landlord to recover possession of an apartment in the premises known as No. 39 West One Hundred and Thirty-third street, in the borough of Manhattan, upon the ground that the landlord was a natural person, and required such possession for her own immediate and personal use and occupancy both for herself and family for dwelling purposes, in good faith. The tenant resisted this and relied upon the fact that the landlord owned property immediately contiguous in which she and her family were dwelling and also urged the claim that the landlord sought from him an increase in rental which he declined. This practically constitutes the entire issue of good faith and the jury after trial determined it in favor of the tenant.

The facts, briefly, seem to indicate, while the landlord ostensibly holds the title to the adjoining property in which she now lives, the same was purchased by her not for her own benefit but out of funds received from the Chesapeake and Ohio Railroad Company in payment of damages for the death of her brother who was killed in a railroad accident; that the widow and orphans of such deceased brother were to receive the issues and profits from such property and to otherwise have the use of such premises. These children resided with the appellant until two of them were married and due to certain discord occurring between them and her husband caused them to remove into other premises. They desire to obtain possession of the house thus purchased for them and so advised their aunt, and she, wishing to let them have it, sought possession of the apartment now occupied by this tenant. Seeking to avoid inconvenience to the latter the appellant offered the tenant another apartment in these premises at what she considered a fair and reasonable rental, which the tenant refused. .This, it seems to us, cannot constitute a successful attack upon the good faith of the landlord and we feel, therefore, that the jury has improperly determined the issue. Its verdict to clearly contrary to the evidence and the weight thereof.

Final order reversed and new trial ordered, with ten dollars costs to the appellant to abide the event.

Bijur and Mullan, JJ., concur.

Order reversed and new trial ordered.

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Bluebook (online)

123 Misc. 392, 205 N.Y.S. 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-givens-nyappterm-1924.