Goetschius v. De Barbieri

110 N.Y.S. 1076

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 5, 1908
• Status: Published

Opinion

PFR CURIAM.

The judgment is not in accordance with the testimony. At the expiration of defendant’s written lease, on July 1, 1906, she remained in. possession for nine days overtime. Plaintiff claims a renewal of the yearly lease by reason of a holdover. Defendant claims a separate oral agreement by which defendant was allowed to remain on condition that she should pay pro rata for the time of occupation.

Assuming that the court believed defendant, and adopted her version as correct, he should have allowed plaintiff a judgment for the nine days’ pro rata rent. If, on the other hand, he adopted plaintiff’s version as correct, he should have allowed plaintiff the year’s rent, less such sum as plaintiff may have obtained by reletting, assuming any such reletting to have taken place. Instead of doing either of these things, the court gave judgment for plaintiff for one month’s pro rata rent. There is no testimony whatever to support this judgment. It is true that it 'is the plaintiff who appeals, and defendant urges that plaintiff is not prejudiced if he recovered a month’s rent, instead of only nine days’ rent. The theory upon which the decision was based does not appear; but it was clearly founded upon a misconception of the evidence on the part of the trial justice, which is a sufficient reason for a reversal.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.