37 N.Y.S. 287 | N.Y. App. Div. | 1896
This case lias twice been tried. On the former trial the complaint was dismissed on the ground that Healey being a part owner of the property, it was to be presumed that he remained in possession after the expiration of the term of one year with his partner as part owner and not under the lease, and that, therefore, their remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year. Upon a motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term, the exceptions were sustained and a new trial ordered (86 Hun, 259). We see no reason for dissenting from the conclusion there arrived at.
There remain for us to consider only the questions as to the proposed amendment of the answer, and the exclusion of the correspondence between the defendant Healey and his firm. The allowance or disallowance of the amendment to the answer was a matter in the discretion of the trial court, and it does not seem to us that there was any abuse of such discretion. Whether the defendants were in possession of the property before the lease was made was immaterial. They made the lease, and from that time on, it being a lease of the whole property, they assumed to be and were in possession under the lease and that alone during the term of one year. The lease established the relation of landlord and tenant, and they could not be in possession under any other claim during the term of the lease. They admitted this in their answer, and such admission stood until after the decision of the General Term, and an amendment on the second trial was very properly denied.
The correspondence between the defendant Healey and his firm was properly excluded. It was immaterial and if admitted would not have changed the result. The firm letter to Healey was in effect a notice that the lessees would not renew the lease, and a statement
It cannot be said that Healey by his consent given before the expiration of the term could avoid the legal effect of the holding over, when we hold that the legal effect of the holding over was not avoided by reason of Healey being a member of the firm that held. over.
We are of the opinion that the judgment should be affirmed, with costs.
Van Brunt, P. J., Barrett, Bumsey and Ingraham, JJ., concurred.
Judgment affirmed, with costs.