Havemeyer v. Switzer

15 Misc. 629, 37 N.Y.S. 352, 72 N.Y. St. Rep. 705

• Court: City of New York Municipal Court
• Decided: February 15, 1896
• Status: Published

Opinion

Schuchman, J.

This is an appeal from a judgment entered on an order overruling the defendant’s demurrer to plaintiff’s complaint as frivolous, and from said order.

The action is brought on an express covenant to pay rent.

In such an action the plaintiff need not allege in his complaint nor prove that defendant occupied or enjoyed the premises, nor the ownership of the premises let (Gilhooley v. Washington, 4 N. Y. 217); otherwise in an action for use and occupation.

Defendant claims that plaintiff should have alleged in his complaint a performance of all the conditions of the contract on his part, pursuant to section 533 of the Code, and citing 101 N. Y. 328, but he fails to perceive that there are no conditions of the contract• set up in the complaint, the contract, of letting and hiring, the agreement to pay rent, merely are set forth. ' .

The weak point in plaintiff’s complaint is.the fact that the term is not definitely stated, but with reasonable certainty it. can be inferred therefrom that the term was for a year, and commenced on'Mayl, Í894.

Order and judgment appealed from affirmed, with costs.

McOabthy, J., concurs.

Judgment and order affirmed, with costs,