Electronic Corp. of America v. Famous Realty, Inc.

Appellate Division of the Supreme Court of New York

Electronic Corp. of America v. Famous Realty, Inc.

275 A.D.2d 859

Appellate Division of the Supreme Court of the State of New York·Decided May 31, 1949·Published

Opinion

The decision of the trial court that there is no basis for declaring that the tenant had any right to claim either constructive or actual eviction is amply supported by the evidence. (Thomson-Houston Elec. Co. V. Durant Land Improvement Co., 144 N. Y. 34; O’Brien v. Smith, 59 Hun 624, opinion in 13 N. Y. S. 408, affd. 129 N. Y, 620; Forshaw v. Hathaway, 112 Misc. 112; Drago v. Mead, 30 App. Div. 258.) There was no abuse of discretion in the refusal to grant specific performance. (Beck v. Allison, 56 N. Y. 366.) Plaintiff offered no evidence which warranted an award of larger damages. Johnston, Sneed, Wenzel and MaeCrate, JJ., concur; Nolan, P. J., dissents and votes to modify the judgment so as to provide for an award of damages to appellant on the basis of the concession on the trial, by the attorney for respondent, that damages might be assessed by means of an apportionment of rent.

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The decision of the trial court that there is no basis for declaring that the tenant had any right to claim either constructive or actual eviction is amply supported by the evidence. (Thomson-Houston Elec. Co. V. Durant Land Improvement Co., 144 N. Y. 34; O’Brien v. Smith, 59 Hun 624, opinion in 13 N. Y. S. 408, affd. 129 N. Y, 620; Forshaw v. Hathaway, 112 Misc. 112; Drago v. Mead, 30 App. Div. 258.) There was no abuse of discretion in the refusal to grant specific performance. (Beck v. Allison, 56 N. Y. 366.) Plaintiff offered no evidence which warranted an award of larger damages. Johnston, Sneed, Wenzel and MaeCrate, JJ., concur; Nolan, P. J., dissents and votes to modify the judgment so as to provide for an award of damages to appellant on the basis of the concession on the trial, by the attorney for respondent, that damages might be assessed by means of an apportionment of rent.

Electronic Corp. of America v. Famous Realty, Inc., 275 A.D.2d 859 (N.Y. Ct. App. 1949).

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Opinion

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