Cloe v. Murphy

245 A.D. 784 | N.Y. App. Div. | 1935

The complaint alleges that the defendant leased to plaintiff to work on shares a farm with certain stock and tools for the term of one year beginning on March 1, 1928, and that on December 1,1928, the parties entered into a further agreement renewing the original lease with certain changes for the term of one year beginning December 1,1928. It then alleges a breach of the second lease and asks for damages resulting therefrom. The answer admitted the making of a lease on March 1, 1928, but denied that the agreement was as stated in the complaint. As a counterclaim it set up what defendant claimed to be the real agreement and alleged a breach thereof and claimed for the damages resulting therefrom. It denied that there was a second lease. The referee found that there was no consideration to support the second lease. He allowed the plaintiff to prove his items of damage arising out of the breach of the first lease. He then found that each party had presented numerous contradicted claims against the other and that those which he had allowed to the plaintiff exceed by a certain amount those which he had allowed to the defendant and directed judgment for this amount. He did not pass upon any individual items, nor did he specify those which he had allowed or disallowed. Judgment reversed upon the law and facts and new trial granted, with costs to the appellant to abide the event. The court reverses all findings of fact made by the referee. Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.