Lobel v. Van Hoose

Appellate Terms of the Supreme Court of New York

Lobel v. Van Hoose

141 N.Y.S. 490

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 8, 1913

StatusPublished

This text of 141 N.Y.S. 490 (Lobel v. Van Hoose) 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

Lobel v. Van Hoose, 141 N.Y.S. 490 (N.Y. Ct. App. 1913).

Pincite

Opinion

PER CURIAM.

[1] The verdict was set aside upon the ground of error in the admission of testimony concerning an oral lease, alleged to have been made prior to the written lease in evidence. It appears that the oral lease covered additional premises and a different period of time, and was entirely separate and distinct from the written lease. In no way did the oral lease vary or alter the terms of the written instrument, and evidence of it was clearly admissible.

[2] Upon another ground, however, we are of the opinion that the verdict should be set aside. It is difficult to see how this defendant, who is being sued upon an implied agreement to pay rent as a holding over tenant, can defend by proving that he was liable for the same rent of the same premises under an express oral agreement. While it is true that, even under our new liberal practice, pleadings cannot be ignored entirely, and evidence given under objection of a cause of action not pleaded, in the case at bar the defendant himself proved the facts which show that he is liable for the rent, and he cannot be heard to complain, or claim surprise, if the proof does not strictly conform to the pleadings.

The order, setting aside the verdict and directing a new trial, should be affirmed, without costs.

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PER CURIAM.

[1] The verdict was set aside upon the ground of error in the admission of testimony concerning an oral lease, alleged to have been made prior to the written lease in evidence. It appears that the oral lease covered additional premises and a different period of time, and was entirely separate and distinct from the written lease. In no way did the oral lease vary or alter the terms of the written instrument, and evidence of it was clearly admissible.

[2] Upon another ground, however, we are of the opinion that the verdict should be set aside. It is difficult to see how this defendant, who is being sued upon an implied agreement to pay rent as a holding over tenant, can defend by proving that he was liable for the same rent of the same premises under an express oral agreement. While it is true that, even under our new liberal practice, pleadings cannot be ignored entirely, and evidence given under objection of a cause of action not pleaded, in the case at bar the defendant himself proved the facts which show that he is liable for the rent, and he cannot be heard to complain, or claim surprise, if the proof does not strictly conform to the pleadings.

The order, setting aside the verdict and directing a new trial, should be affirmed, without costs.

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Bluebook (online)

141 N.Y.S. 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lobel-v-van-hoose-nyappterm-1913.