Salmon v. Zeller

122 Misc. 652

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1924
• Status: Published

Opinion

Guy, J.

Plaintiff appeals from a judgment entered by direction of the court in favor of defendant dismissing the complaint in an action brought to recover the amount of a check for fifty dollars, given by defendant on account of rent of a store leased by her from plaintiff.

The answer pleads lack of consideration. Defendant testified that on September 25, 1922, being threatened with a great increase in rent of the store then occupied by her, she undertook to rent another store from plaintiff, which was to be ready October 20, 1922, and gave plaintiff a check for fifty dollars as advance payment of rent; that next day learning from some workmen employed on plaintiff’s store that the store would not be ready until November fifteenth, she made a new lease of her old store at an increased rent and stopped payment of the check. Plaintiff denied that his store was not ready until November 15, 1922, and testified that it was actually ready for occupancy on October 15, 1922, but remained vacant six or seven months thereafter.

The facts testified to by defendant constitute no defense to the action. She entered into a contract with plaintiff which constituted a valid consideration for the check.

•Judgment reversed, with thirty dollars costs, and judgment directed in favor of plaintiff for fifty dollars, with interest and costs.

Burr and Proskauer, JJ., concur.

Judgment reversed.