9 A.D.2d 827 | N.Y. App. Div. | 1959
Appeal from an order of a Special Term, Supreme Court, Sullivan County, and from the judgment entered thereon. In this action by the owner of a hotel for $214.05 on a check given by defendant for hotel accommodations, plaintiff has had summary judgment. The answer, admitting the delivery of the check, asserted as an affirmative defense that the accommodations for which the check was given “ were unfit for the use for which they were intended ”. The affidavit of defendant in opposition to the motion for summary judgment shows that the air-conditioning equipment in the room assigned to him was not working and the room was too hot; that complaints were made to the management, but the condition was not remedied. In the form in which this is set forth a triable issue is not presented. No contract is pleaded by defendant, or suggested in his affidavit, that plaintiff agreed he should have an air-conditioned room, from which it might be fairly inferred that there was a breach of a specific agreement in this respect. In such event the measure of damage would be the difference in value between the room furnished and the room agreed to be furnished; no such damage is alleged. In the absence of some such agreement, the pleaded defense that the room was unfit for the use for which it was intended would not be actionable. There is no other proof that generally in a summer resort hotel lack of air conditioning means unfitness. On the record as presented, we are of opinion defendant failed to show he had a sufficient affirmative defense to the action on the check which he gave to plaintiff for the accommodations. Order and judgment unanimously affirmed, with $10 costs. Present — Poster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.
