Sickles v. Shaw

City of New York Municipal Court

Sickles v. Shaw

76 N.Y.S. 978

DecidedJanuary 15, 1902

StatusPublished

This text of 76 N.Y.S. 978 (Sickles v. Shaw) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sickles v. Shaw, 76 N.Y.S. 978 (N.Y. Super. Ct. 1902).

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Opinions

HASCALL, J.

Defendant was plaintiff’s tenant under written lease, the rent being “payable in equal .monthly payments of $116.66 each on the first day of every month during said term.” The agreement was for a term of io months and 24 days, commencing November 6, 1899, to end September 30, 1900; so it appears that the first payment was due December 1, 1899, and those subsequent thereto on the 1st day of each succeeding month. In the absence of provision for rent in advance, it became payable at the close of each month. [979]*979The plaintiff claims to recover for the monthly installments becoming due August i and September i, 1900, while the answer, denying that defendant failed to pay the rent from the 1st day, and that there is due the rent from the 1st day of August, demands that the complaint, as regards that item, be dismissed.

The only witness testifying at the trial (the plaintiff himself) said:

“I haven’t here any memorandum as to the amounts paid by Mr. Shaw diming the term of this lease. My bookkeeper has it. * * * I cannot say how many payments were paid. I cannot state as to what the payment made on July 31st is for. I don’t know what that payment was for. I presume it was for rent, etc. I know he left owing two months’ rent. This is all I can recall now. But my books will show. I haven’t got them here. I was not asked to bring them.”

Under full and proper proof, it is possible that plaintiff might recover all that he has demanded, but the testimony adduced did not sustain the complaint. The court was right in proceeding with the trial, as no good reason, required by the rule, was shown for postponement; but we think the grounds upon which the judgment stands are insufficient to maintain it in its entirety.

The judgment and order appealed from should be modified by reducing the amount of recovery by the sum of $116.66, besides the costs and disbursements of this appeal, which must be allowed to the appellant, and, as so modified, affirmed.

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HASCALL, J.

Defendant was plaintiff’s tenant under written lease, the rent being “payable in equal .monthly payments of $116.66 each on the first day of every month during said term.” The agreement was for a term of io months and 24 days, commencing November 6, 1899, to end September 30, 1900; so it appears that the first payment was due December 1, 1899, and those subsequent thereto on the 1st day of each succeeding month. In the absence of provision for rent in advance, it became payable at the close of each month. [979]*979The plaintiff claims to recover for the monthly installments becoming due August i and September i, 1900, while the answer, denying that defendant failed to pay the rent from the 1st day, and that there is due the rent from the 1st day of August, demands that the complaint, as regards that item, be dismissed.

The only witness testifying at the trial (the plaintiff himself) said:

“I haven’t here any memorandum as to the amounts paid by Mr. Shaw diming the term of this lease. My bookkeeper has it. * * * I cannot say how many payments were paid. I cannot state as to what the payment made on July 31st is for. I don’t know what that payment was for. I presume it was for rent, etc. I know he left owing two months’ rent. This is all I can recall now. But my books will show. I haven’t got them here. I was not asked to bring them.”

Under full and proper proof, it is possible that plaintiff might recover all that he has demanded, but the testimony adduced did not sustain the complaint. The court was right in proceeding with the trial, as no good reason, required by the rule, was shown for postponement; but we think the grounds upon which the judgment stands are insufficient to maintain it in its entirety.

The judgment and order appealed from should be modified by reducing the amount of recovery by the sum of $116.66, besides the costs and disbursements of this appeal, which must be allowed to the appellant, and, as so modified, affirmed.

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Bluebook (online)

76 N.Y.S. 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sickles-v-shaw-nynyccityct-1902.