Lambden v. Thompson

159 N.Y.S. 242 | N.Y. App. Div. | 1916

Jenks, P. J.:

This action is brought for rent of certain premises of which the plaintiff and Eugene Lambden were landlords. It was tried by the County Court and a jury. The defendant answered by way of counterclaim only. He appeals from the judgment entered on the verdict against him, but does not bring up the evidence. He relies upon the motion to dismiss the plaintiff at the close of plaintiff’s case and upon the motion made under section 999 of the Code of Civil Procedure. The allegations of rent due and that the defendant had promised to pay it but had not were sufficient. (Wallach v. Dryfoos, 140 App. Div. 438.) Eugene Lambden died in October, 1909. The rents after his decease went to his heir. (McAdam Landl. & Ten. [4th ed.] 261, citing Wright v. Williams, 5 Cow. 501; Executors of Van Rensselaer v. Executors of Platner, 2 Johns. Cas. 17.) The complaint alleges that Annie Baber Lambden was the sole heir and devisee under the will of Eugene Lambden, and that she had assigned all of her right, title and interest in the rent and cause of action to the plaintiff. This was sufficient, and probate of the will was not essential. (Corley v. McElmeel, 149 N. Y. 228.)

I advise that the judgment and order of the County Court of Westchester county be affirmed, with costs.

Carr, Stapleton, Mills and Putnam, JJ., concurred.

Judgment and order of the County Court of Westchester county affirmed, with costs.