137 N.Y.S. 607 | N.Y. App. Div. | 1912
These actions involve the same question" of law, were argued together, and will be treated as one case. Magdalena Mack-mull’s case presents the most favorable state of facts for the plaintiffs, though there is so little difference in them that there is no occasion for distinguishing them, and we will use the facts in her case for the purposes of this appeal. She testifies
The defendant testifies, without contradiction, that the plaintiff came to him and offered to purchase the houses; that he lived in the houses at the time, and that he showed them to the plaintiff, and told her they were all right;' that they were well built. He says "the buildings were completely finished at the time, in August, 1906, and. in response to questions by the court he testified that at the time of the sale six families were living in the house; that the plaintiff asked him about the rents, and that he told her twelve and thirteen dollars rent, six-family house. “ I told her there were six families and the
Assuming, however, that the representation was made, that it was false, and that the plaintiff relied upon the statement, where is the element of damage % Is there any question that she received exactly what was shown her as constituting the property ? She took title to the premises, it should be remembered, in 1906, entering into possession at once, and it is conceded that she had collected rents to the amount of $2,605.50 up to the time of the commencement of this action on the 1st day of October, 1910. While thus in possession arid collecting her rents, she testifies that she “had some trouble with the tenement house department about those houses. The inspectors came then in 1908.” What the trouble was does not appear; she was certainly not called upon to vacate the houses, for she went on collecting rents for two years, and without making a move to rescind the contract, and there is no eAddence from which it can be inferred that she had any legal difficulties in reference to the houses. In the meantime the Legislature of the State of New York amended the Tenement House Law, and after providing all of the details, section 122 was made to read that “If any building hereafter constructed as or altered into a tenement house be occupied in whole or in part for human habitation in violation of the last section [which provided for a
The judgments in both cases should be reversed and new trials' granted, costs to abide the final award of costs.
Hirschberg, Burr, Thomas and Rich, JJ., concurred.
Judgments reversed and new trials granted, costs to abide the final award of costs.