Sprague v. Voigtman

93 N.Y.S. 523

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 24, 1905
• Status: Published

Opinion

PER CURIAM.

The disputed fact as to whether defendants were hold-overs under a lease was resolved by the jury in favor of the plaintiff,' upon evidence that fully justified such finding. The action was brought to recover the rent for November and December. No motion to dismiss the complaint was made at the close of the entire case, except as to the November rent. Defendants claimed that a judgment entered against them in a previous action under the same alleged holding over for the recovery of the rent for September and October was a bar to the recovery for the November rent in this action, for the reason that the previous action was brought on November 3d, after the rent for that month had accrued. The motion to dismiss having been limited to the claim for November rent, it must be held that no question of law was presented upon the issue of a holding over, and that as to that there was but a question of fact presented for the jury.

We cannot consider the point raised with respect to the November rent, inasmuch as the return does not contain the judgment roll in the previous action, or a copy of it, and we are not in a position to know when that action was commenced.

Judgment affirmed, with costs.