Chapman v. Preszburg ( 1909 )

MacLEAN, J.

The defendant herein appeals from the judgment rendered against him and in favor of the plaintiff, and, at the same time and by the same notice appeals from three “orders denying the motions to require the plaintiff to give security for costs on the .ground that he resides without the state.” As no appeal lies from an order of the Municipal Court denying a motion to give security for costs (Enderlein v. Coghlan, 52 Misc. Rep. 658, 102 N. Y. Supp. 467), the appeal therefor will be dismissed, with $10 costs; but, inasmuch as the court below was without authority to entertain such motions, section 3268 and subdivisions 13 and 14 of section 3347 of the Code of Civil Procedure being inapplicable to the Municipal Court, nor made applicable even by section 20 of the Municipal Court act (Laws 1902, p. 1496, c. 580), as that court is not a court of record, the $10 costs of this dismissal should be paid from the costs improperly imposed upon the denial of the motions to give security for costs, and the balance, if any, should be returned to the defendant.

xThe plaintiff claimed and established his claim for rent for the months of March and April, 1908, even by admission upon this appeal; but the defendant failed to establish any right to counterclaim for nonuser of heat, repairs, caring for lawns, and moving expenses, aggregating the sum of $144.75, and therefore the same was properly disallowed. Amid much that is irrelevant and immaterial, it appears from the following letter, agreed to by the plaintiff, that the defendant was a monthly tenant:

“November 4, 1907.

“Armand R. Chapman, Richmond Hill, L. I.—Dear Mr. Chapman: Con-

firming our conversation of to-day’s date, I agree to occupy the house, No. 1374 Union street, Brooklyn, N. Y., under the following conditions:

“First. That, the rent is to remain as usual, $75 per month, including heat, and it is to be reduced to $50, optional, if I choose not to use the heating plant service.

“Second. That I am to receive, in case the house is sold, and possession desired, a notice in writing of at least three weeks, and four weeks, if possible.

“Third. That I am to receive, if possession is desired, $100 in cash to defray expenses of moving from said premises.

“It is understood that I agree to stay until May 1, 1908, upon your accepting these conditions.

“Yours faithfully, Rudolf Preszburg.”

Herein is no reference to repairs or caring for lawns, no obligation of the landlord, in the absence of express agreement, whatever was provided in an earlier lease for one year from October 1, 1906, to October 1, 1907, as that lease had expired, and was apparently of no force and effect between the parties after its expiration, nor was proof given of any right to claim for nonuser of heat, in the absence of proof of the exercise of the option by the defendant, or of claim for moving expenses under the above new and later agreement of the parties; the defendant having been notified on April 10, 1908, that possession would be required of him on April 30th following, the expiration of the period of his agreement of hiring, and according to the evidence remaining in possession of the premises for the months of March and April, 1908.

Judgment affirmed, with costs. Appeal from orders dismissed, with $10 costs. All concur.