31 N.Y.S. 610 | N.Y. Sup. Ct. | 1894
Judgment was taken against two of the defendants, Bernard C. Cunningham and Max J. Marks, on default. The third defendant, Ferdinand Greenebaum, answered. The action is brought to "recover judgment for the alleged breach of covenants contained in a lease of premises made by plaintiff’s testator to Cunningham and Marks. The provision in the lease relating to such covenants is as follows:
“The said parties of the second part hereby covenant and agree that for and in consideration of the reduced rent at which said premises are leased, and the allowance of two months before the payment of rent shall commence, to take the said premises in their present condition, and at their own sole cost and expense to put said premises in substantial, thorough, and perfect repair by repairing the brickwork where necessary, putting an entire new roof (including beams and planking) on extended part of building, repair and put in good order the floor of the second story of said building, and a new floor in main part of first story of said building (over cellar). Also to put new leader from the roof of said building, and connect same with sewer pipe in cellar. And also, to make and do any and all other repairs which may be necessary or required. And., to keep the said premises in thorough repair during the continuance of this lease, at their own sole cost and expense, without calling upon or requiring the party of the first part to do anything.”
“It is claimed that the supposed assignee may rebut this presumption by proving that he never had any assignment, and there is authority for the position. This, we think, is open to question, provided proof of that fact involves proof of entry without right or as a trespasser.”
The court intimates that these cases might perhaps be questioned, in so far as they may be said to authorize proof of a wrongful entry in rebuttal of the presumption. But the suggested limitation has no application in this case. The evidence offered by the defendant tends to show an occupation conjointly with one of the original lessees, and, in view of their relations as described in the evidence, presumptively with his permission. Respondent’s first point is that the defendant’s counsel, by asking for a direction of a verdict in his favor, submitted all questions of fact to the court But that rule has no application to this case, because before the plaintiff had asked for a direction in his favor, and necessarily, before the court had passed on the question, the defendant asked leave to go to the jury “upon the question of fact whether or not the defendant had an assignment of this lease and assumed any if its obligations.” The court denied the motion, and allowed an exception. After .that the plaintiff asked for and obtained a direction in his favor. The defendant’s exceptions should be sustained, and a new trial ordered, with costs to the defendant to abide the event. All concur.