215 A.D. 637 | N.Y. App. Div. | 1926
This action was brought to recover rent. An answer was interposed and the matter submitted at Special Term upon a stipulated statement of facts which shows the execution by one Martis as landlord of a lease dated January 8, 1924, to defendant as lessee and by mesne assignments transferred to the plaintiff by said Martis. This lease was for the term of three years beginning February 1, 1924, and ending January 31, 1927. Defendant entered into the occupation of the said premises and continued to occupy the same until on or about the month of December, 1924, when he voluntarily abandoned the premises and moved therefrom. On December 10, 1924, a summons Was issued in the Supreme Court by George Martis as plaintiff against this defendant to recover accrued rent for the months of September, October, November and December, 1924. Judgment was entered in such action for Martis against this defendant upon a default. On
An order was made which dismissed defendant’s defense and permitted the defendant within ten days after entry and service of the order to serve an amended answer upon payment of ten dollars costs of the motion or, on failure so to do, judgment to be directed for the plaintiff. Plaintiff appeals from that portion of the order which permitted the amendment and claims that the court had no authority under the stipulation to permit an amendment to the pleading. The stipulation provides that the submission is for the purpose of procuring a judgment of the court “ with the same force and effect as though a notice of motion and moving affidavits were submitted upon the motion for judgment upon the pleadings.” This carries with it the right to permit the amendment. Paragraph 2 of the statement of facts shows that the defendant voluntarily abandoned the premises during the month of December, 1924, and Mr. Justice Rhodes in his opinion refers to the fact that the claim was made before him of a surrender of the premises. Permission was granted for an amendment in order to allow this fact to be pleaded. The order appealed from should be affirmed.
The only brief filed by the respondent upon this appeal consists of a copy of an affidavit verified July 9, 1925, which the respondent filed with the trial justice on or before the hearing on the stipulated facts and was so filed “ in addition to and as a part of the facts stipulated.” This affidavit sets forth alleged facts with reference to the bankruptcy proceeding and to the surrender of the premises.
The order appealed from should be affirmed, with costs in favor of the respondent.
Order unanimously affirmed, with ten dollars, costs and disbursements.