Ely v. Winans

88 N.Y.S. 929

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 23, 1904
• Status: Published

Opinion

MacLEAN, J.

Action being brought for rental for the month of July, 1903, under a lease by the month, dated April 23d of that year, defendant pleaded and contended that he never actually became a tenant of the plaintiff or occupied the premises; testifying that the business there was, as it had been since August, 1901,. the date of its incorporation, conducted by the R. M. Winans Company, succeeding at that date Winans & Dunbar, who had been lessees of the premises. Accordingly it might be considered, if not held, that the lease was merely an adventitious circumstance, giving rise to no cause of action, particularly as it was shown that the rental for May and June had been paid by the check of the R. M. Winans Company, and that at least one receipt had been given to that company by name. The plaintiff, however, asserted that the R. M. Winans Company was in part of the premises as the tenant of the defendant, as was likewise at least one other concern; and he testified that his relations were with the defendant individually, from whom he had taken care to procure the lease before the 1st of May, who' had paid him the rent for June, from whom he had demanded that for July, .and who had asked him to wait a few days, even writing him: “I shall have to ask you to wait till next week for the rent. * * * [giving a personal reason for the request and concluding:] After this I do not think I’ll have any difficulty.” These statements, especially the letter, left the question of whose was the liability a question of fact within the determination of the learned justice before whom it was tried without a jury. The premises were expressly demised to the defendant. There was enough to sustain the finding that they were occupied under the lease by him; i. e., by his subtenants, who were not in privity of contract with the plaintiff, whose only cause of action upon the demise was against his covenantor, the defendant. Two sets of cases are cited for the defendant tó govern inconsistent assumption of facts. None are applicable unless the defendant’s version of the facts be alone accepted, and his own letter be disregarded. It may not be presumed here that the defendant had assigned his lease, as it was not proven that another than the lessee was in possession of the entire premises. Nor may'it be taken that the landlord had accepted another than the defendant as his tenant, for neither release of the one, nor acceptance of the other, was proven directly or implied. Furnishing money to a lessee to pay his rent does not oust the old and induct a new tenant. The judgment should be affirmed.

Judgment affirmed, with costs. All concur.