Sternberg v. Roeder

Appellate Terms of the Supreme Court of New York

Sternberg v. Roeder

133 Misc. 192, 231 N.Y.S. 443, 1928 N.Y. Misc. LEXIS 1132

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 9, 1928

StatusPublished

This text of 133 Misc. 192 (Sternberg v. Roeder) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sternberg v. Roeder, 133 Misc. 192, 231 N.Y.S. 443, 1928 N.Y. Misc. LEXIS 1132 (N.Y. Ct. App. 1928).

Pincite

Opinion

Per Curiam.

The partial defense (which is really a counterclaim) is susceptible of the construction that the tenant-appellant abandoned possession of the premises on the agreement of the landlord to let the premises during the residue of the term and apply the rent received toward payment of the rent reserved by the lease; that thereafter the tenant produced a suitable tenant who agreed to hire the premises for the balance of the term and pay the landlord therefor the sum of $1,000 rent, and the landlord would not accept the proposed tenant because such proposed tenant refused to also hire the store and apartment above the store in a building adjoining the demised premises. Such an alleged agreement did not offend the Statute of Frauds; it did not lack consideration, and it was competent for the landlord to waive the provision of the lease requiring consent to sublet or assign to be evidenced by a writing. As no [193]*193objection was made to the mere form of the plea, it was error to strike out the so-called defense and the evidence given in support of the claim.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

All concur; present, Delehanty, Lydon and Crain, JJ.

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Per Curiam.

The partial defense (which is really a counterclaim) is susceptible of the construction that the tenant-appellant abandoned possession of the premises on the agreement of the landlord to let the premises during the residue of the term and apply the rent received toward payment of the rent reserved by the lease; that thereafter the tenant produced a suitable tenant who agreed to hire the premises for the balance of the term and pay the landlord therefor the sum of $1,000 rent, and the landlord would not accept the proposed tenant because such proposed tenant refused to also hire the store and apartment above the store in a building adjoining the demised premises. Such an alleged agreement did not offend the Statute of Frauds; it did not lack consideration, and it was competent for the landlord to waive the provision of the lease requiring consent to sublet or assign to be evidenced by a writing. As no [193]*193objection was made to the mere form of the plea, it was error to strike out the so-called defense and the evidence given in support of the claim.

Judgment reversed and a new trial ordered, with costs to appellant to abide the event.

All concur; present, Delehanty, Lydon and Crain, JJ.

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Bluebook (online)

133 Misc. 192, 231 N.Y.S. 443, 1928 N.Y. Misc. LEXIS 1132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sternberg-v-roeder-nyappterm-1928.