Rosenblatt v. Smith

36 Misc. 784, 74 N.Y.S. 1143

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1901
• Status: Published

Opinion

Gildersleeve, J.

The action is to recover rent for the month of July, 1901, for the premises No. 268 Third avenue, under a written lease. The defense is a claim of surrender and acceptance. Defendant says that, with the full consent and approval of plaintiff, he assigned the lease to a third party, who became tenant of the place, instead of the defendant; that the plaintiff made another lease to the third party, commencing at the expiration of defendant’s lease, and that the third party, with the full consent of plaintiff, took an assignment of the remaining period of defendant’s lease, so that he, the third party, could enter at once into possession of the premises. The plaintiff denies this claim of surrender and acceptance, and swears that he never released defendant from the lease. There is no evidence that between the time of the alleged assignment by the defendant to the third party, March, 1901, and July, 1901, the rent was paid by this third party and not by defendant, as would, in all probability, have been the case, had this third party been substituted- as tenant in place of defendant, with plaintiff’s consent. There is a very sharp conflict of evidence, but, as the justice has found in favor of the plaintiff, we, are not disposed to disturb his decision. The case was tried without a jury, and the exceptions to rulings on the admission and exclusion of evidence are not of sufficient weight to warrant a reversal.

The judgment should be affirmed, with costs.

Freedman, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.