State Realty Co. v. Post

123 Misc. 925, 206 N.Y.S. 713, 1924 N.Y. Misc. LEXIS 1255

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 11, 1924
• Status: Published

Opinion

Per Curiam.

This case was before us in the Appellate Term for November, 1923, on an appeal by defendant from an order denying his motion for judgment on the pleadings.

The action is against a guarantor of a lease for deficiency in rent. The defendant guarantor alleged on the previous appeal that the language of the instrument upon which he is sought to be held did not warrant a construction that he had guaranteed the rent under the renewed term, under which the deficiency had occurred.

This court, although recognizing the inartificial form of the guaranty, was of opinion that if read alone the instruments should be construed as covering the renewal term, and if read in connection with other papers somewhat similar in form, previously signed by the defendant, issues as to the construction were raised which demanded a trial. The situation is not changed by the fact that plaintiff now moves for summary judgment. But in addition to that consideration, the very fact that plaintiff alleges that in accordance with the lease he endeavored to re-rent the premises after the tenant was dispossessed “ at the best possible price ” indicates that the obligation of the defendant was to pay an unliquidated sum as to the extent of which defendant is entitled to hear and challenge plaintiff’s proofs. The case is not, therefore, one in which summary judgment under rule 113 can properly be granted.

Order affirmed, with ten dollars costs and disbursements.

All concur; present, Guy, Bijur and Mullan, JJ.