13 N.Y.S. 439 | N.Y. Sup. Ct. | 1891
This action was originally commenced before a justice of the peace. The complaint stated the cause of action to be for rent of rooms in Nyack for three months, being the months of September, October, and .November, 1888. The leasing was admitted, as stated, at $15 per month, and that the rent was unpaid for three months. The defense stated in the answer was former suit pending and eviction. The action was commenced on the 2Sd of November, 1889. There was offered in evidence a copy of the judgment roll of the county court, showing an action brought for rent of December, 1888, and January, February, and March, 1889. This record was rejected because not duly certified. The paper is not returned, and it is impossible to say whether it was or was not certified, so as to justify its introduction in evidence. It was proven that an action had been commenced for the latter months of the year, but the time of its commencement was not disclosed. The defense of a former'action pending therefore fails. All the installments due upon a contract must be included in an action, but separate actions are legal for each installment, and it is manifest that this action was first commenced, and, after all the installments became due for the remainder of the year, the action in the county court was commenced. The defense of eviction also failed. The plaintiff’s lease only permitted the use of apartments in a house, and the eviction consisted in the fact that independent parties and their workmen made noises and committed trespasses while erecting houses east and west of the houses in which the demised premises were situated. A trespass by strangers is not an eviction. There must be dispossession by a paramount title, or by the act of the landlord, or he or his servants must make the occupancy so annoying and uncomfortable as to justify a tenant in removing from the same. The proof showed nothing to justify a conclusion of an eviction. The judgment should therefore be affirmed, with costs.
