Kaven v. Chrystie

Appellate Terms of the Supreme Court of New York

Kaven v. Chrystie

84 N.Y.S. 470

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 6, 1903

StatusPublished

This text of 84 N.Y.S. 470 (Kaven v. Chrystie) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kaven v. Chrystie, 84 N.Y.S. 470 (N.Y. Ct. App. 1903).

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Opinion

FREEDMAN, P. J.

The material facts in this case are as follows : The landlord herein became the owner of certain premises in this city in November, 1902. At that time the premises were in possession of the defendant, who had a lease for three years from November 1, 1900, by the terms of which she was obliged'to pay a rental of $300 a month. The premises had been purchased for the landlord by Smith & Hume, brokers, with the expectation of being sold again. Smith & Hume were endeavoring to find a purchaser for the property, and the defendant, who was also desirous of selling her lease, had been assured by either Smith or Hume that, in the event of a sale of the property by them for Kaven, they would purchase her lease. They had also assured her that, in their belief, Kaven would not require her to pay rent for the premises pending an effort to sell, but that when her lease was purchased the amount of rent due from her would be deducted from the purchase price of the lease. Kaven also admits that he had tacitly consented to this arrangement. The defendant paid no rent for the months of November and December, 1902, and for January, February, and March, 1903,- and on March 9, 1903, these proceedings were commenced.

There is nothing in the case going to show that there was a valid agreement relieving the defendant from payment of rent. Neither Smith" nor Hume testifies to any such agreement. Hume swears, “I told her I did not think she would have any trouble until Mr. Kaven soldand Smith testifies that the defendant asked, “Can’t I get some free rent?” and I said, “If possible, I will get you some.” Upon the testimony of the defendant and her daughter to the effect that Smith agreed with the defendant that “she might occupy the building rent free until it was torn down,” the proceeding was dismissed by the trial [471]*471judge. We are asked to hold that this testimony is sufficient to destroy the legal effect of a written lease executed by the defendant under seal. This cannot be done. McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. 458, 8 L. R. A. 257,17 Am. St. Rep. 638; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120. The agreement made by Smith, if one was made to allow the defendant to remain upon the premises “until the building was torn down,” was void for uncertainty, and without consideration.

Final order reversed. New' trial ordered, with costs to the appellant to abide the event. All concur.

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FREEDMAN, P. J.

The material facts in this case are as follows : The landlord herein became the owner of certain premises in this city in November, 1902. At that time the premises were in possession of the defendant, who had a lease for three years from November 1, 1900, by the terms of which she was obliged'to pay a rental of $300 a month. The premises had been purchased for the landlord by Smith & Hume, brokers, with the expectation of being sold again. Smith & Hume were endeavoring to find a purchaser for the property, and the defendant, who was also desirous of selling her lease, had been assured by either Smith or Hume that, in the event of a sale of the property by them for Kaven, they would purchase her lease. They had also assured her that, in their belief, Kaven would not require her to pay rent for the premises pending an effort to sell, but that when her lease was purchased the amount of rent due from her would be deducted from the purchase price of the lease. Kaven also admits that he had tacitly consented to this arrangement. The defendant paid no rent for the months of November and December, 1902, and for January, February, and March, 1903,- and on March 9, 1903, these proceedings were commenced.

There is nothing in the case going to show that there was a valid agreement relieving the defendant from payment of rent. Neither Smith" nor Hume testifies to any such agreement. Hume swears, “I told her I did not think she would have any trouble until Mr. Kaven soldand Smith testifies that the defendant asked, “Can’t I get some free rent?” and I said, “If possible, I will get you some.” Upon the testimony of the defendant and her daughter to the effect that Smith agreed with the defendant that “she might occupy the building rent free until it was torn down,” the proceeding was dismissed by the trial [471]*471judge. We are asked to hold that this testimony is sufficient to destroy the legal effect of a written lease executed by the defendant under seal. This cannot be done. McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. 458, 8 L. R. A. 257,17 Am. St. Rep. 638; Coe v. Hobby, 72 N. Y. 141, 28 Am. Rep. 120. The agreement made by Smith, if one was made to allow the defendant to remain upon the premises “until the building was torn down,” was void for uncertainty, and without consideration.

Final order reversed. New' trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

84 N.Y.S. 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaven-v-chrystie-nyappterm-1903.

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