Zindler v. Levitt

116 N.Y.S. 726 | N.Y. App. Div. | 1909

Burr, J.:

The only questions in this case arose in connection with defendants’ counterclaim. The defendants claimed that on the' 1st of March, 1908, they leased to the plaintiff a part of the store floor in the premises 310 Church street, in the borough of Manhattan, for a term of eleven months, at a rent of forty-one dollars and sixty-six cents a month, payable in advance. The plaintiff claimed: First, that the letting was to his son, and not to himself; second, that the letting was only from month to month, and third, that there was an eviction, for the reason that the defendants so interfered with the use and occupation of the leased premises as to compel the occupant to move on the first of September. The trial judge found in favor of the defendants on each of these issues, upon evidence which was amply sufficient to sustain the -findings. ' The only remaining question was as to the amount of rent due. The counterclaim was for a balance amounting to sixteen dollars and sixty-six cents for each of the months of May, June and July, and for the entire rent for the months of August and September. One of the defendants testified that about the first of July he had a conversation with the plaintiff, who said he “ would like to have me reduce the rent for ” {sic) “ $25.00 for three months * * * because they are not doing the-business they thought they would.” The defendant further testified that he said: “ Being that you are an old acquaintance of ours and we have always dealt with you, I will take your suggestion,” and that he “ consented to reduce the rent for the three months to $25.00 for May, June and July.” After this conversation the sum of twenty-five dollars was paid and accepted for each of the three months named. Upon being asked why any claim was made for a balance of rent as unpaid for either of these months, the said defendant further testified: “ I have told my attorney that I have given him” (the plaintiff) “the difference between the $41.66 and the $25 payments, and my lawyer told me that if it is an action I could take it back, and under his advice I did it.” The trial judge held that, notwithstanding this agreement,' the defendants were entitled to recover upon their counterclaim the full amount of the rent originally reserved by the terms of the lease, and gave judgment in their favor, not only for the rent due on the first days of August and September, but also for forty-nine dollars and ninety-eight cents, the balance of rent claimed, to be due for May, June and July. In this we think that he erred. While the agreement to reduce the rent remained unexecuted, it was void and inoperative. The lessors had the right to repudiate it at any time and demand the full amount of rent provided for in the lease. But as to the payments which had fallen due. and had been paid and accepted as payments in full in accordance with the agreement to reduce the rent, the defendants, the lessors, Could not revoke or repudiate it and maintain an action to recover the sum deducted. (McKenzie v. Harrison, 120 N. Y. 260; Hayne v. Sealy, 71 App. Div. 418; Lewis v. Donohue, 27. Misc. Rep. 514; Napier v. Spielmann, 54 id. 96.) The defendants claim that because no receipt was given stating that the twenty-five dollars was paid and accepted in full for a month’s rent,- the rule above stated had no application. A receipt is only important as evidence of the agreement. (McKenzie v. Harrison, supra.) When there is no dispute as to the.facts respecting the agreement and the payments, the absence of a receipt is of no consequence.

The judgment of the Municipal Court should be reversed and a new trial ordered, with costs to. the plaintiff, the appellant, unless the.defendants, the respondents, stipulate that the amount of their counterclaim be reduced by the sum of forty-nine dollars and ninety-eight cents, and that plaintiff’s judgment be increased by that amount, with interest from the date of said judgment. If they so stipulate, the judgment as modified is affirmed, without costs.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, with costs to the plaintiff, the appellant, unless the defendants, the respondents, stipulate that the amount of their counterclaim be reduced by the sum of forty-nine dollars and ninety-eight cents, and that plaintiff’s judgment be increased by that amount, with interest from the date of said judgment. If they so stipulate, the judgment as modified is affirmed, without costs.