Broome-Clinton Co. v. Woltzer ( 1913 )

LEHMAN, J.

The plaintiff has recovered a judgment for the sum of $40 for four months’ rent of a cellar at the rate of $10 a month. The defendant had moved from the premises before the beginning of the four months, and the only theory upon which the plaintiff can recover is that the defendant had left in the premises certain property, and that the presence of this property in the premises continued the defendant’s occupancy. It is claimed that this property was only rubbish abandoned by the defendant, and certainly the only property that could possibly be considered to constitute anything but rubbish, • which defendant intended to abandon, was a pile of about 150 douche pans, which, it is testified, had been rendered valueless by water some two years before.

[1] The question of whether the mere leaving of property Upon removal constitutes a continuance of the occupancy is usually one of fact. In considering this question of fact, it seems to me that not only the value of the goods left must be considered, but the ratio of that value to the amount of the rent of the premises is material. While the testimony produced here that 150 douche pans were left would in my opinion not justify a holding of continued occupancy of valuable premises, it might be sufficient to show continued occupancy of a cellar rented at $10 per month, particularly as it appears. that these douche pans had not been removed as. rubbish during a period of two years after the time they had been spoiled by water.

[2] However, whatever the rule might ordinarily be, it seems to me undoubtedly sufficient in this case, because the defendant’s attorney stipulated, apparently in the presence of the defendant, that:

“If they find 100 douche pans in the place, I am willing to have judgment entered against my client for the full amount.”

Pursuant to that stipulation, the case was adjourned, and over 135 douche pans were found in the premises. While the stipulation was perhaps foolish, it represents at least a concession that the presence of 100 douche pans would constitute sufficient evidence to justify a'judgment on the facts against his client. If the attorney,had at the trial attempted to withdraw this stipulation and concession, I would be willing to- agree that the defendant should be relieved of it; but no motion to that effect was made, and I am unwilling to concede that an appellate court has power to disregard on appeal a stipulation or concession against which the party asked no relief at the trial.

In my opinion, judgment should be affirmed, with costs.

PAGE, J., concurs.