Erman v. Great Central Palace Co. , 151 N.Y.S. 481 ( 1915 )

BIJUR, J.

[1] Plaintiff sues to recover the difference between the amount of the actual rental of certain premises and the amount as represented by defendant. Defendants leased several apartment houses to plaintiff for a term of five years, and simultaneously represented in writing that the rents actually received amounted to a certain sum, and agreed in the same instrument to make good any difference if such existed. Plaintiff proved that the rentals were actually less than as represented. Defendants then produced their copy of the “representation agreement” — a typewritten document signed by the plaintiff. Above the signature was written in longhand the words, “Above amount found to be correct.” Plaintiff testified that he could not rea-i English, that when he signed the document he was told it was a receipt, and that the written words were not ip it when he signed it. Defendants claim that plaintiff signed it, after having gone through the houses with them, and after plaintiff had ascertained, from each tenant that the rentals represented were correct.

It is not necessary to comment upon the incredibility of the story told by defendant in this respect, because, as matter of law, the document is no defense. If defendants be believed, all that their story amounts to is that the tenants joined with them in misrepresenting the amount of the rentals. This does not' relieve defendants from the obligation of their agreement as the result of the misrepresentation proved.

[2] Defendants urge, also, that under the rule laid down in Ettlinger v. Weil, 184 N. Y. 179, 77 N. E. 31, plaintiff can recover only the difference between the amount of rent as- represented and the rental value of the premises, and that there is no proof of such value. The Ettlinger Case, however, has no application, because in the case at bar the parties made their own rule of damage by the agreement, and defendants, having agreed that plaintiff should be reimbursed the difference, if any, of the rentals as represented and the rentals as they actually were, are bound thereby.

Judgment and order reversed, and new trial granted, with costs to appellant to abide the event. All concur.