114 Misc. 395 | N.Y. App. Term. | 1921
The landlord instituted the summary proceeding under chapter 942 of the recently enacted rent laws, alleging that as owner of the premises in question, a ten-family apartment house, he was seeking in good faith to recover possession of the apartment occupied therein by the defendant tenant for the immediate and personal use of himself and family as a dwelling. The tenant answered said petition by the interposition of a general denial. After a somewhat extended trial before the court and jury, the latter returned a verdict in the tenant’s favor resulting in a dismissal of the petition upon the merits and the denial of the motion made to set the verdict aside.
The test by which applications of this character
In the present case, the landlord was asked upon his examination: “ Do you intend to occupy for yourself as a dwelling place for yourself and family, for usual purposes, the apartment now occupied by Mrs. Eygabroadf ” Upon the ground that the answer called for a conclusion of the witness, the tenant’s counsel’s objection was sustained to which timely exception was taken. It is urged upon us on this appeal, and we are convinced by the authorities that the exclusion of this testimony constituted error requiring a reversal of the judgment.
It is true that intent is usually to be judged by the light of surrounding facts and circumstances, for the reason that they afford a satisfactory test which is known and capable of consideration by the triers of fact. But as was aptly stated in Cortland County v. Herkimer County, 44 N. Y. 26: “ here the witness speaks of an intent which may be at variance with the surrounding facts and circumstances, and of which none can know but himself.” It has repeatedly been held since the decision in Seymour v. Wilson, 14 N. Y. 567, that the motive with which an
Since the jury were rightly instructed that the good faith of the landlord as to the use of the premises for himself and family was a question of fact for them to determine, it would seem clear that his intention in that regard constituted a material and important factor for their consideration. We express no view in that respect of an answer by the plaintiff to the question propounded. Both principle and authority, however, compel us to hold that an answer to such question should have been allowed by the learned trial justice, and for this error of exclusion we direct a new trial.
Final order and judgment reversed and new trial granted, with thirty dollars costs to appellant to abide the event.
Guy and McCook, JJ., concur.
Final order and judgment reversed and new trial granted, with thirty dollars costs to appellant to abide event.