Rosenquest v. Canary

50 N.Y.S. 111 | N.Y. App. Div. | 1898

Patterson, J.:

The precise question presented by the appeal from the judgment herein was passed upon by this court adversely to the respondents’ contention in giving construction to the identical lease upon which this action for rent was brought. (Rosenquest v. Noble, 21 App. Div. 583.) It was held that the agreement relating to the deposit of $4,500, to be retained as liquidated damages for a breach of the covenants of the lease, would not satisfy the obligation of these defendants to pay money due under the lease as rent of the premises. The judgment must, therefore, be reversed and a new trial • ordered, with costs to appellant to abide event. The appeal from the order denying the motion for á new trial must be dismissed. In a case tried before a court without a jury there' is no authority for a motion for a new trial on the minutes, and an order denying such a motion presents no question for review.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Appeal from order denying motion for new trial dismissed.