152 N.Y.S. 996 | N.Y. App. Term. | 1915
The amended complaint alleged that on September 11, 1913, defendant agreed, if plaintiff’s assignor would lease her house, that she—■
"would make and complete all the repairs inside and outside of said premises at her expense before the commencement of the term of the lease; that the furniture then in said premises would remain therein during the entire term; and also the defendant further agreed to place upon the premises certain additional furniture necessary for the complete enjoyment of the premises before the commencement of the term.”
The additional allegations are that two days later plaintiff’s assignor, in part consideration of said agreement, accepted a lease; that seventeen days later he entered into possession; that defendant did not repair nor furnish the house; and plaintiff, as assignee, demands judgment for $251.40.
I cannot concur in the theory of the trial. If the tenant did not waive the alleged undertaking to furnish by moving in without the
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.