Logan v. Sherman

Appellate Terms of the Supreme Court of New York

Logan v. Sherman

188 Misc. 1023, 70 N.Y.S.2d 423, 1947 N.Y. Misc. LEXIS 2411

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 20, 1947

StatusPublished

Cited by2 cases

This text of 188 Misc. 1023 (Logan v. Sherman) 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

Logan v. Sherman, 188 Misc. 1023, 70 N.Y.S.2d 423, 1947 N.Y. Misc. LEXIS 2411 (N.Y. Ct. App. 1947).

Pincite

Opinion

Per Curiam.

Memorandum Subdivision (e) of section 2 of the Commercial Bent Law (L. 1945, ch. 3, as amd. by L. 1946, ch. 272) does not require that the agreement which may be made by the parties fixing an emergency rent at the reasonable rent as of March 1, 1943, plus 15%, be in writing. In this respect it is different from the provisions for a written agreement in section 4 of the statute. When the parties enter into a written agreement of lease which states it ‘ ‘ contains the entire agreement between the parties ”, it is reasonable to expect that a separate prior agreement fixing such rent would also be in writing. Under such circumstances, evidence of an asserted oral agreement must be clear and convincing. We think the finding here of such an oral agreement for the landlord was against the weight of the evidence and also that the proof was insufficient to show that such rent was fixed “ upon the basis of the rent charged on such date for the most nearly comparable commercial' space in the same building or other rental area, or other satisfactory evidence ”, as also required by subdivision (e) of section 2.

The final order and judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Hammer, Shientag and Edee, JJ., concur.

Order and judgment reversed, etc.

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Per Curiam.

Memorandum Subdivision (e) of section 2 of the Commercial Bent Law (L. 1945, ch. 3, as amd. by L. 1946, ch. 272) does not require that the agreement which may be made by the parties fixing an emergency rent at the reasonable rent as of March 1, 1943, plus 15%, be in writing. In this respect it is different from the provisions for a written agreement in section 4 of the statute. When the parties enter into a written agreement of lease which states it ‘ ‘ contains the entire agreement between the parties ”, it is reasonable to expect that a separate prior agreement fixing such rent would also be in writing. Under such circumstances, evidence of an asserted oral agreement must be clear and convincing. We think the finding here of such an oral agreement for the landlord was against the weight of the evidence and also that the proof was insufficient to show that such rent was fixed “ upon the basis of the rent charged on such date for the most nearly comparable commercial' space in the same building or other rental area, or other satisfactory evidence ”, as also required by subdivision (e) of section 2.

The final order and judgment should be reversed and a new trial ordered, with $30 costs to appellant to abide the event.

Hammer, Shientag and Edee, JJ., concur.

Order and judgment reversed, etc.

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Bluebook (online)

188 Misc. 1023, 70 N.Y.S.2d 423, 1947 N.Y. Misc. LEXIS 2411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/logan-v-sherman-nyappterm-1947.

Opinion

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