Leo v. Mcmanus

225 A.D. 823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1929
• Status: Published

Opinion

Order denying motion to strike out paragraphs 2, 7 and 13 of defendant’s answer, and for summary judgment, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The paragraphs in question are sham and frivolous. The correspondence between the original parties to the lease, the fact that for four years the parties thereto acted pursuant to its terms without objection by the lessor, the fact that defendant agreed to the terms and accepted the rent without objection for several months after he became the owner, and the fact that thereafter he negotiated with plaintiff with reference to the alleged claim that plaintiff was required to pay taxes and offered to continue to accept the rent if plaintiff should pay the additional taxes, without claiming any fraud whatever in the making of the lease, all show that the claim is an afterthought for the purpose of voiding the lease for the remainder of the term. The moving papers show that plaintiff recovered summary judgment against defendant in the Supreme Court for four months’ rent under the lease in question and that such judgment was affirmed by this court. (223 App. Div. 738.) That judgment is res judicata between the parties to this action. Lazansky, P. J., Kapper, Hagarty, Seeger and Scudder, JJ., concur. Settle order on notice.