Woodard v. Johnson

109 N.Y.S. 741

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 10, 1908
• Status: Published

Opinion

PER CURIAM.

This judgment must be reversed, because the record upon which it was rendered does not clearly establish the plaintiff’s right to the $100 awarded to him. The evidence that was offered is conflicting, and nearly the whole record consists simply in a colloquy between the court and counsel. The lease, which was offered in evidence, shows that the defendant rented an apartment- house from the plaintiff, for which he agreed to pay $475 monthly in advance on the 15th day of each month, and deposited $475 with the plaintiff, as security for the performance of the terms of the lease. It appears that $76.17 of the rent due June 15th was not paid; that on the 8th day of July a precept in dispossess proceedings was issued; that the warrant was issued on July 20th, and executed July 25tlr; and that the defendant did not pay any rent for the month of July. The plaintiff, while claiming the right to recover $76.17 for the June rent and $475 for the July rent, in addition to the right to retain the deposit of $475, sued for the sum of $500. The defendant admitted $76.17 to be due for the June rent, and claimed the right to recover the deposit of $475. These were the only facts proved or admitted, and upon them the trial justice awarded judgment for the plaintiff for $100. We are unable to understand any theory upon which, on the facts stated, the plaintiff was entitled to this award. Perhaps, upon a new trial, if counsel offer proof, instead óf argument, a basis may be laid for arriving at an intelligent conclusion.

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