Goldberg v. Freeman

92 N.Y.S. 237

Opinion

PER CURIAM.

The action was brought to recover the balance of a deposit made with the defendant as security for the performance of the covenants and conditions of a lease. The plaintiff was dispossessed for the nonpayment of rent in the amount of $64, and recovered the amount of'the deposit, less $64.

Doubtless the tenant was entitled to recover the balance of his deposit remaining, after deducting therefrom the amount of the damages suffered by the landlord from the breaches of covenants on his part prior to the dispossession. Chaude v. Shepard, 122 N. Y. 397, 25 N. E. 358. He alleged in his complaint, however, that he had discharged all his obligations under the lease, which the answer denied. Under such a condition of the pleadings it was plainly his duty, as a part of his affirmative case, to give prima facie proof of performance of the covenants on his part. In the absence of such proof, it was error for the court to direct a verdict in his favor.

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