Goldberg v. Lavinski

New York Court of Common Pleas

Goldberg v. Lavinski

22 N.Y.S. 552, 3 Misc. 607, 51 N.Y. St. Rep. 605

CourtNew York Court of Common Pleas

DecidedMarch 6, 1893

StatusPublished

Cited by1 cases

This text of 22 N.Y.S. 552 (Goldberg v. Lavinski) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goldberg v. Lavinski, 22 N.Y.S. 552, 3 Misc. 607, 51 N.Y. St. Rep. 605 (N.Y. Super. Ct. 1893).

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Opinion

PRYOR, J.

Action for two months’ rent under an alleged lease for a year. The defendant denies a letting for a year, but the court found the fact against him; and as the evidence was conflicting, and quite evenly balanced, we are not authorized to reversé the judgment for deficiency of proof.

The defendant essayed to dispute the title under which he took possession, but from this escape he was precluded by a familiar principle.

Again, the defendant urges the validity of an oral lease for a year to commence in the future; but he failed to plead the statute of frauds, and, if he had, the defense would have been unavailing. Young v. Dake, 5 N. Y. 463; Taggard v. Roosevelt, 2 E. D. Smith, 100.

Yet again, appellant interposes a surrender of his term; but no such defense appears to have been hinted on the trial, by plea or proof, nor do the facts in evidence support it.

To disprove the agreement for a lease in February, 1892, defendant offered to show that in March, 1892, he contracted for the purchase of other property; but of what force is the latter fact in negation of the former? And upon what principle may a party adduce his own act as evidence against his adversary? It was not of the res gestae, nor was the plaintiff" privy to it. Tender of the proof was properly rejected. We see no ground upon which the judgment may be disturbed. Judgment affirmed, with costs.

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PRYOR, J.

Action for two months’ rent under an alleged lease for a year. The defendant denies a letting for a year, but the court found the fact against him; and as the evidence was conflicting, and quite evenly balanced, we are not authorized to reversé the judgment for deficiency of proof.

The defendant essayed to dispute the title under which he took possession, but from this escape he was precluded by a familiar principle.

Again, the defendant urges the validity of an oral lease for a year to commence in the future; but he failed to plead the statute of frauds, and, if he had, the defense would have been unavailing. Young v. Dake, 5 N. Y. 463; Taggard v. Roosevelt, 2 E. D. Smith, 100.

Yet again, appellant interposes a surrender of his term; but no such defense appears to have been hinted on the trial, by plea or proof, nor do the facts in evidence support it.

To disprove the agreement for a lease in February, 1892, defendant offered to show that in March, 1892, he contracted for the purchase of other property; but of what force is the latter fact in negation of the former? And upon what principle may a party adduce his own act as evidence against his adversary? It was not of the res gestae, nor was the plaintiff" privy to it. Tender of the proof was properly rejected. We see no ground upon which the judgment may be disturbed. Judgment affirmed, with costs.

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Bluebook (online)

22 N.Y.S. 552, 3 Misc. 607, 51 N.Y. St. Rep. 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-v-lavinski-nyctcompl-1893.

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