Friedlander v. Citron

122 N.Y.S. 236

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 8, 1910
• Status: Published

Opinion

LEHMAN, J.

The complaint sets forth a cause of action for rent. The answer admits the allegations of the complaint by failure to deny, but sets up two separate defenses: (a) That the lease under its terms was terminated by the total destruction of the building; (b) that there was a surrender and acceptance. The plaintiffs put in evidence the lease, and it was conceded on the record that the October rent was not paid by defendants. Plaintiffs rested, and defendants produced evidence to prove their defenses. In this they failed, and the trial justice directed a verdict in plaintiffs’ favor, but thereafter set aside the verdict, apparently because he believed that plaintiffs’ proof was not complete.

Inasmuch as the allegations of the complaint were admitted, and the defendants at no time moved to dismiss the complaint, either for failure to set forth a cause of action or for failure of proof, the only-issues of fact or of law in the casé were those raised by the separate defenses, and the trial justice erred in setting aside his direction of a verdict.

Order reversed, with costs, and verdict reinstated. All concur.