Friedlander v. Fleischhauer , 132 N.Y.S. 508 ( 1911 )

GIEGERICH, J.

The answer admits that in the month of September, 1900, the defendants’ testator agreed and promised to give the pláintiff a written lease for a term of years of certain premises at the yearly rent of $7,000, and to make, execute, and deliver the said lease and possession of the said premises thereunder on the last day of September, 1900. As the plaintiff testified that he had paid one month’s rent in advance at the time when the letting was agreed upon, but that the defendant had refused to execute the written lease, I think he made out a prima facie case for the return of his money, and that it was therefore error to dismiss the complaint upon that cause of action at the close of his case. This is the error assigned, and, although evidence seems to have been subsequently received which would have been ample to sustain a verdict for the defendants upon the cause of action in question, the fact is of no importance in the disposition of this appeal.

There seems to be no reason for disturbing the judgment entered upon the verdict of the jury upon the second cause of action.

The judgment in so far as it dismisses the complaint as to the first cause of action and awards costs to the defendants should be reversed, and a new trial of that cause of action should be ordered; in all other respects the judgment and the order appealed from should be affirmed, without costs. All concur.