Eswein v. Hodgkinson

Appellate Division of the Supreme Court of New York

Eswein v. Hodgkinson

124 A.D. 6, 108 N.Y.S. 531, 1908 N.Y. App. Div. LEXIS 2017

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 1908

StatusPublished

This text of 124 A.D. 6 (Eswein v. Hodgkinson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eswein v. Hodgkinson, 124 A.D. 6, 108 N.Y.S. 531, 1908 N.Y. App. Div. LEXIS 2017 (N.Y. Ct. App. 1908).

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Opinions

Gaynor, J.:

This is an action for rent of a family apartment. The lease was. in writing, and the term was one year from September first, 1906, [7]*7the rent payable monthly in advance. The defendant moved out the end of the following April, and this action is to recover the rent thereafter. The defendant answered that the plaintiff released him from the lease before he moved out, and thus had the affirmative on the trial. The jury gave a verdict for the defendant, but the trial Justice granted the motion on the minutes to set aside the verdict, and the defendant appeals from -that order. The testimony of the defendant that he asked that he might mo-ve out in April and pay no rent thereafter is denied. The defendant testified that he told the plaintiff when he asked the latter to release him, “ that this was the renting season, that the first of May would be'the time when the tenants took the new property”, and that the plaintiff in answer “ said he did not think there would be any trouble in renting the place théye'now ”. This the plaintiff denied. To show its improbability the plaintiff sought to prove that that kind of property, namely, steam heated apartments of a fine class, were not rented on May first but on October first, but the evidence was excluded. Although the motion to set aside the verdict was made on all the grounds allowed by the Code of Civil Procedure, the trial justice granted it on the ground that the exclusion of this evidence was error. In this he was right. October first being the moving and renting day for that kind of property, it is improbable that the plaintiff admitted that May first was the day, or accepted that as a moving cause for his consent to release the defendant on payment of the April rent. The people who occupy such apartments go away for the summer vacation as a rule,.and therefore do not enter into leases on May first, which, it is said, led to the general change of the renting day of such property from May first to October first years ago. A fact, which bears on. the improbability of evidence is competent (Willson v. Law, 112 N. Y. 536).

As the order must be affirmed for this reason, it is not necessary to consider whether there was any consideration for. the alleged release.

The order should be affirmed.

Woodward, Jenks and Miller, JJ., concurred; Hooker, J., read for reversal.

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Gaynor, J.:

This is an action for rent of a family apartment. The lease was. in writing, and the term was one year from September first, 1906, [7]*7the rent payable monthly in advance. The defendant moved out the end of the following April, and this action is to recover the rent thereafter. The defendant answered that the plaintiff released him from the lease before he moved out, and thus had the affirmative on the trial. The jury gave a verdict for the defendant, but the trial Justice granted the motion on the minutes to set aside the verdict, and the defendant appeals from -that order. The testimony of the defendant that he asked that he might mo-ve out in April and pay no rent thereafter is denied. The defendant testified that he told the plaintiff when he asked the latter to release him, “ that this was the renting season, that the first of May would be'the time when the tenants took the new property”, and that the plaintiff in answer “ said he did not think there would be any trouble in renting the place théye'now ”. This the plaintiff denied. To show its improbability the plaintiff sought to prove that that kind of property, namely, steam heated apartments of a fine class, were not rented on May first but on October first, but the evidence was excluded. Although the motion to set aside the verdict was made on all the grounds allowed by the Code of Civil Procedure, the trial justice granted it on the ground that the exclusion of this evidence was error. In this he was right. October first being the moving and renting day for that kind of property, it is improbable that the plaintiff admitted that May first was the day, or accepted that as a moving cause for his consent to release the defendant on payment of the April rent. The people who occupy such apartments go away for the summer vacation as a rule,.and therefore do not enter into leases on May first, which, it is said, led to the general change of the renting day of such property from May first to October first years ago. A fact, which bears on. the improbability of evidence is competent (Willson v. Law, 112 N. Y. 536).

As the order must be affirmed for this reason, it is not necessary to consider whether there was any consideration for. the alleged release.

The order should be affirmed.

Woodward, Jenks and Miller, JJ., concurred; Hooker, J., read for reversal.

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Bluebook (online)

124 A.D. 6, 108 N.Y.S. 531, 1908 N.Y. App. Div. LEXIS 2017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eswein-v-hodgkinson-nyappdiv-1908.

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