141 N.Y.S. 985 | N.Y. App. Div. | 1913
In October, 1908, the plaintiff leased his store in the city of Ithaca to the. defendants, who were then conducting a mer
The monthly rent due July 1, 1912, was not paid and immediately thereafter this action was brought. Both defendants answered, alleging an assignment of the lease by Perry to Wheaton January 4, 1909, with the knowledge and consent of the plaintiff and the receipt thereafter of the monthly rentals from Wheaton individually, and that thereby defendant Perry was discharged from all obligation under the lease; and that in September, 1911, plaintiff consented to a transfer of the lease from Wheaton to one Griffin, and that defendant Wheaton made such transfer and that thereafter up to and including the month of June, 1912, accepted from Griffin or his representatives the monthly rentals and thereby discharged defendants from all liability under the lease.
The issues were tried before a jury in the City Court of Ithaca and a verdict rendered of no cause of action and a judgment entered thereon, from which the plaintiff appealed to the Tompkins County Court, which reversed the judgment of the City Court, with costs, and ordered a new trial in City Court at a specified date. ' From such judgment and order of reversal the defendant Wheaton only appealed to this court. The decision of the county judge was correct and the judgment and order appealed from should be affirmed, with costs. There was no claim made upon the trial that the monthly rent due July 1, 1912, has been paid by any one, but the defendants sought to avoid liability upon the part of defendant Perry upon the ground that Perry had assigned his interest in the lease to Wheaton and that the plaintiff had accepted Wheaton as the lessee, and to escape liability upon the part of both defendants upon the ground that Wheaton had thereafter assigned the lease to one Griffin with the knowledge and consent of plain
Upon the argument of this appeal there was some discussion as to the power of the Appellate Division to review the decision of the County Court to the effect that the verdict was against the weight of evidence. We held in Kilts v. Neahr (101. App. Div. 317) that this court has the power to review the action of the County Court in refusing to exercise its discretionary power
The judgment and order appealed from should be affirmed.
All concurred.
Judgment affirmed, with costs.