Nealis v. Marks

Appellate Terms of the Supreme Court of New York

Nealis v. Marks

96 N.Y.S. 740

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 21, 1905

StatusPublished

Cited by2 cases

This text of 96 N.Y.S. 740 (Nealis v. Marks) 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

Nealis v. Marks, 96 N.Y.S. 740 (N.Y. Ct. App. 1905).

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Opinion

SCOTT, P. J.

The defendant appeals from a judgment overruling his demurrer to the complaint for insufficiency. The action is for rent for the months of October and November, 1904, of an apartment in an apartment house. The complaint alleges the appointment of plaintiff as receiver in May, 1904, and that prior to that time the defendant had entered into a written lease of the apartment, which lease is attached to and made part of the complaint. The lease was for a term commencing on October 1, 1903, and,ending on June 30, 1904. It was stipulated that the tenant might at his option continue to occupy the apartment at a reduced rental for the months of July, August, and September, 1904. There is no fact alleged showing that the defendant owed anything as rent for the months for which suit is brought. The written lease terminated on September 30, 1904. It is not alleged that defendant held over after that date, or that he "occupied the premises during the months for which rent is claimed. The statement that defendant is indebted to plaintiff for rent for October and November is a mere legal conclusion, and not the statement of a fact. The-same is true .of the allegation that defendant is indebted in a certain sum for [741]*741telephone messages. This is merely a conclusion of law, and not the averment of a fact. _

_ It follows that the interlocutory judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to amend his complaint within 10 days upon payment of costs. All concur.

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SCOTT, P. J.

The defendant appeals from a judgment overruling his demurrer to the complaint for insufficiency. The action is for rent for the months of October and November, 1904, of an apartment in an apartment house. The complaint alleges the appointment of plaintiff as receiver in May, 1904, and that prior to that time the defendant had entered into a written lease of the apartment, which lease is attached to and made part of the complaint. The lease was for a term commencing on October 1, 1903, and,ending on June 30, 1904. It was stipulated that the tenant might at his option continue to occupy the apartment at a reduced rental for the months of July, August, and September, 1904. There is no fact alleged showing that the defendant owed anything as rent for the months for which suit is brought. The written lease terminated on September 30, 1904. It is not alleged that defendant held over after that date, or that he "occupied the premises during the months for which rent is claimed. The statement that defendant is indebted to plaintiff for rent for October and November is a mere legal conclusion, and not the statement of a fact. The-same is true .of the allegation that defendant is indebted in a certain sum for [741]*741telephone messages. This is merely a conclusion of law, and not the averment of a fact. _

_ It follows that the interlocutory judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to plaintiff to amend his complaint within 10 days upon payment of costs. All concur.

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Bluebook (online)

96 N.Y.S. 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nealis-v-marks-nyappterm-1905.

Opinion

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