150 Misc. 269 | Tonawanda City Court | 1933
This is an action to recover the sum of $170 alleged to be owing plaintiff by defendant for rent of certain premises located
The evidence presented upon the trial discloses the following situation: One Fred Kumro, Sr., was the father of the plaintiff. In his lifetime Fred Kumro, Sr., was the owner of the premises in question. Prior to his death said Fred Kumro, Sr., leased the premises to defendant and defendant rented the same from said Kumro on a month to month basis at a monthly rental of twenty-five dollars per month payable on the first day of each month in advance. Defendant went into possession of the premises and remained in possession down to the time of the death of said Fred Kumro, Sr., which took place in March, 1928, and thereafter continued to remain in possession until about September 9, 1932, when defendant removed from the same. Defendant paid the monthly rental of twenty-five dollars per month to the senior Kumro down to the time of bis death, and thereafter paid a like rental to the plaintiff, son of said Fred Kumro, Sr., down to and including October 1, 1931. Plaintiff became the owner of the premises in question upon the death of his father and pursuant to his father’s last will and testament heretofore duly admitted to probate. In November, 1931, defendant paid plaintiff fifteen dollars on account of the rent for November, 1931, leaving a balance of ten dollars unpaid. In December, 1931, defendant lost his job. According to defendant, when plaintiff came “ up and asked for the rent ” defendant told him he had been laid off and did not know how he was going to pay any more rent, and that plaintiff suggested that defendant apply to the city welfare department and advised defendant that, if he did not do so before December 20, 1931, he would not get “ December rent.” This conversation plaintiff denies. In any event, thereafter plaintiff, according to his testimony, did receive certain payments from or through the city welfare department, viz., ten dollars per month for each of the months of December 1, 1931, to August 1, 1932, both inclusive, and these payments plaintiff credited on the rent of twenty-five dollars per month. There is no dispute between the parties that plaintiff did thus receive monthly payments from the city welfare department, except that defendant testifies that the December, 1931, payment was “ eighteen or twenty dollars,” and that the January, 1932, payment was for “ sixteen sixty-one or sixteen ninety-one.” Neither party introduced into evidence the city vouchers which no doubt would have established the correct amount of these two disputed payments. After November, 1931, defendant made no payments to plaintiff for or on account of rent,
It will be noted that the record is void of any evidence showing or tending to show any agreement between the plaintiff and the welfare department or city .of Tonawanda by virtue of which the department or the city became the tenant or in any respects obligated to plaintiff. The inference is that the welfare department was but contributing some amount monthly to defendant towards* the payment of rent as part of its system of welfare relief, making the payments by check direct to plaintiff.
The burden of proving the relation of landlord and tenant ordinarily rests on the party asserting it. If the relationship of landlord and tenant is shown to have been created, the burden of proving its termination rests on the party asserting that fact, for the relationship once established is presumed to continue, within logical limits. (35 C. J. 968; 22 id. 87-92, and many authorities there cited.) Applying these settled rules to the case at bar, it must be held that here defendant had the burden of showing that the relationship of landlord and tenant, unquestionably existing between plaintiff and himself up to November 1, 1931, was terminated on or at some time after that date. This burden defendant failed to meet. There is in the record no evidence from which it can be held that the relationship of landlord and tenant existing between plaintiff and defendant was ever dissolved or terminated prior to the date when defendant removed from the premises. In this connection it may be noted that the plaintiff testified that he never had any agreement to take less than twenty-five dollars per month, and that the defendant, after having testified that in 1928 or 1929 the rent was raised to twenty-seven dollars per month, and that some time in 1929 plaintiff told defendant the rent would again only be twenty-five dollars per month, testified: “ After that there was no change. ■There was never any talk after that. At all times after I knew the
There is or can be here no fact adverse to the conclusion last above stated other than the fact that the plaintiff admittedly received certain moneys from or through the city welfare department which the plaintiff credited on the stipulated or agreed rent when and as the same were received. However, there is no evidence of any agreement between the welfare department and/or the city of Tonawanda and the plaintiff whereby the welfare department or the city became the tenant or whereby that department or the city became obligated to pay the plaintiff any rent whatsoever. The relationship of landlord and tenant is always created by contract, express or implied. (35 C. J. 951, 952; Stern v. Equitable Trust Co., 238 N. Y. 267; Beach v. Nixon, 9 id. 35; Bavendam v. Levinson, 116 Misc. 135; many other authorities.) There exists here no evidence of any express agreement between the city and the plaintiff out of which the relationship of landlord and tenant might arise, nor is there evidence estabhshing an implied agreement outside of the fact that the city through its welfare department made some monthly payment or contribution. In the face of the fact that the relationship of landlord and tenant clearly was created between the plaintiff and the defendant, that nothing was done by or between the parties to change that relationship, that there was no express agreement between the city and its welfare department and the plaintiff, and that the plaintiff merely applied the moneys received from the city or its welfare department to the agreed or stipulated rent, and in the face of the defendant’s own admissions, this court has no recourse other than to hold that the payments made by the city or its welfare department, standing alone, did not create a new relationship or release or discharge the defendant from the relationship into which he apparently voluntarily entered, nor from the obligations arising out of the same.
The defendant by way of counterclaim alleges that he performed
Upon the whole case, therefore, the plaintiff is entitled to recover the sum of $170, the balance of rent owing to him by the defendant, less said counter amount of $11.50, or in all for the sum of $158.50. Plaintiff did not make proof of any interest item of items, and consequently no item of interest is allowed.
In accordance with the views expressed above, judgment has been this day rendered, docketed, entered, and perfected in favor of the plaintiff and against the defendant for the sum of $158.50 damages, together with costs.