O'Gorman v. Teets , 45 N.Y.S. 929 ( 1897 )

Bischoff, J.

Preliminarily to any matters touching the merits of the case, the appellant contends that the order appealed from is assailable because not made upon five days’ notice, within five days after the rendition of the verdict, such notice having been provided for by the statute authorizing the justice to grant a new trial, where the parties have litigated the issues. Laws 1896, chap. 748.

It appears, however, from the record that the hearing of the motion was, by consent of the parties, adjourned to some date to be afterward fixed, the adjournment being taken at the time of the rendition of the verdict, and that both sides were represented at the time of the actual hearing. The order recites the fact that an agreement was made for this purpose by the attorneys for the plaintiff and defendant “ waiving questions of statutory notice,” and this recital is borne out by the minutes of the trial.

"We have, therefore, a case wherein the statutory provision for notice was waived by the party for whose benefit it was intended, and the justice’s jmis diction to make the order was, accordingly, not open to attack. Krakower v. Davis, 20 Misc. Rep. 350.

The action was for rent and the defense was' eviction, with a counterclaim founded upon it, the defendant alleging that through the act of a plumber, engaged by the plaintiff to repair a drainpipe-upon the premises, the cellar was caused to become the receptacle of refuse matter, and that the- stench arising from it necessitated his- removal from the house and also affected the health of his child. The verdict rendered was in favor of the defendant for $150, but the proof of damages clearly failed to support the award,, since, taking the defendant’s evidence as true, the loss to which he was put through his eviction was an expense of $14 for removing his effects, and a further liability for $15 per month for five months, this sum representing the excess of rent which he was called upon to pay (over and above the rent re-' served by his lease from the plaintiff) because of his- having to remove to other premises.

The verdict in his favor was, thus, clearly excessive, since no claim could properly be made for damages arising from sickness occasioned by the breach of the landlord’s agreement to repair (Eschbach v. Hughes, 7 Misc. Rep. 172), and here, indeed, there was neither proof of any such agreement nor of damages sustained by the defendant because of the child’s sickness.

■ The lease contained no covenant upon the part of the landlord to make repairs, and if it be said that the plumber was gratuitously engaged by the landlord to repair this pipe, the answer is that the proof fails to furnish ground for the imposition of liability against the plaintiff because of the negligence of this individual, if any, since he was not shown to have been the servant of the plaintiff, nor negligently selected for this work as an independent contractor. . .

Because excessive, the verdict was infirm, and thus was properly set aside.

It might be said that the grounds stated for the order by the court below covered this particular point, but,- assuming the contrary, the result is still to be upheld, since the appellate court, if impressed with the correctness of an order, such as that before -us, is not confined to the reasons given by the justice at the trial, for the purposes of affirmance, but must approve the decision, if correct, upon any ground. Ferguson v. Gill, 74 Hun, .566.

Order affirmed, with costs.

Daly, P. I., and McAdam, J., concur.

Order affirmed, with costs..