Schuster v. Arscott

110 N.Y.S. 1107

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 5, 1908
• Status: Published

Opinion

PER CURIAM.

The action is for rent for December, 1907, and January, 1908, under a written lease. The answer sets up as a separate defense a constructive eviction, and also counterclaims for damages to defendant arising from being compelled to move out in consequence of the acts and omissions of plaintiff. The jury brought in a verdict in favor of defendant; the counterclaim having been withdrawn from the jury by the court. The court granted an order setting aside the verdict as against the evidence, and setting the cause down for trial on a certain day, unless defendant consented to the entry.of a judgment against him for $42.50, "the rent of December. Defendant appeals from a judgment and order.

As no judgment was' entered, the appeal therefrom must be dismissed. So far as the order is concerned, it was proper for the justice to set aside the verdict, as the rent for the month of December, 1907, was already due at the time of the alleged constructive eviction, so that plaintiff was evidently entitled to the rent for that month, and should have had judgment for the amount of said rent, assuming the. justice was correct in withdrawing the counterclaim from the jury, while, on the other hand, if the justice, as claimed by defendant, improperly refused to submit the counterclaim to the jury, such alleged error evidently affords another reason for allowing a new trial. This latter question, however, it is not necessary to decide on this appeal.

The appeal from the nonexistent judgment is dismissed, and the order setting aside the verdict is affirmed, with costs.