Myers v. Rosenback

11 Misc. 116, 31 N.Y.S. 993, 65 N.Y. St. Rep. 116

• Court: City of New York Municipal Court
• Decided: January 15, 1895
• Status: Published

Opinion

Fitzsimons, J.

The defendant’s answer alleged that he was induced to sign the lease in question by fraudulent representations made by plaintiff. This issue was, in our judgment, clearly established in defendant’s favor by a preponderance of evidence. The fact that defendant remained in possession of the demised premises until June, sixth, under the circumstances, did not make him liable for the June rent, for the reason given by the General Term of this court. See 5 Misc. Rep. 337; 25 N. Y. Supp. 528; Wallace v. Lent, 1 Daly, 481.

The plaintiff suffered no injury because of the denial of his motion to dismiss defendant’s counterclaim. The jury found against the defendant upon said counterclaim. The same thing may be said of the alleged error of the trial justice concerning the admission of evidence to sustain the counterclaim. If there were any errors, evidently they were harmless so far as plaintiff was concerned. After carefully reading the record we are convinced that the judgment is a just one and should be affirmed.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.