88 N.Y.S. 929 | N.Y. App. Term. | 1904
Action being brought for rental for the month of July, 1903, under a lease by the month, dated April 23d of that year, defendant pleaded and contended that he never actually became a tenant of the plaintiff or occupied the premises; testifying that the business there was, as it had been since August, 1901,. the date of its incorporation, conducted by the R. M. Winans Company, succeeding at that date Winans & Dunbar, who had been lessees of the premises. Accordingly it might be considered, if not held, that the lease was merely an adventitious circumstance, giving rise to no cause of action, particularly as it was shown that the rental for May and June had been paid by the check of the R. M. Winans Company, and that at least one receipt had been given to that company by name. The plaintiff, however, asserted that the R. M. Winans Company was in part of the premises as the tenant of the defendant, as was likewise at least one other concern; and he testified that his relations were with the defendant individually, from whom he had taken care to procure the lease before the 1st of May, who' had paid him the rent for June, from whom he had demanded that for July, .and who had asked him to wait a few days, even writing him: “I shall have to ask you to wait till next week for the rent. * * * [giving a personal reason for the request and concluding:] After this I do not think I’ll have any difficulty.” These statements, especially the letter, left the question of whose was the liability a question of fact within the determination of the learned justice before whom it was tried without a jury. The premises were expressly demised to the defendant. There was enough to sustain the finding that they were occupied un
Judgment affirmed, with costs. All concur.
