Manhattan Leasing Co. v. Weill ( 1906 )

PER CURIAM.

The action was for the rent of an apartment for the month of May, and the defendant pleaded payment of rent to May 1st, but not of the rent sued for. At the trial the justice gave judgment for the defendant, upon the ground that the defense of payment was pleaded, and that it was established by the testimony of the defendant ; further, that the plaintiff, having brought out the testimony, was concluded by the defendant’s statement.

Obviously, the judgment must be reversed. Payment was not pleaded, and the plaintiff was not concluded by the testimony of the adverse party upon a fact material to the issue. Code Civ. Proc. § 838. The attitude of the defendant’s counsel at the trial, in insisting upon a misreading of the answer and in moving for judgment upon this frivolous ground, calls for the imposition of costs absolutely.

Judgment reversed, with costs, and a new trial ordered.