Pelgram v. Ehrenzweig , 99 N.Y.S. 913 ( 1906 )

Leveetritt, J.

The plaintiff recovered a judgment for rent. She is the owner of the apartment house Ho. 311 West Hinety-seventh street in this city. She employs agents to secure tenants and collect rents.

The defendant, through his wife, negotiated with the agents for a lease of one of the apartments. His wife claims that, upon two occasions, she called at the premises, was shown the easterly apartment on the fifth floor; then called on the agents, arranged for a lease of that apartment and paid the required deposit.

A lease was prepared and signed by the parties. It provided for the leasing of the westerly and not the easterly apartment on the fifth floor of the premises, a fact which the defendant claims was not discovered until after the delivery of the lease. The defendant never went into possession.

The plaintiff sued for the first two months’ rent less the deposit. The defense pleaded was that the lease did not cover the apartment which the. defendant had contracted to take and that the agents in designating the apartment had fraudulently inserted the word “West” for the word “ East.”

Testimony offered to support that defense was rejected upon the ground, as stated by the leámed justice, that “the law did- not give this court jurisdiction to go behind a written instrument.” ■ This was a mistaken view.

In the Municipal Court, in actions upon written contracts, though fraud may not be proven as the basis for affirmative relief, it is always available as a defense to a claim founded on the contract. Smith v. Hildenbrand, 15 Misc. Rep. 129 ; Richards v. Littell, 16 id. 339; Malkemesius v. Pauly, 17 id. 371.

Here the plaintiff’s recovery depended upon the lease. The defendant should, therefore, have been permitted to support his plea that the execution of the lease was induced by the fraud of the plaintiff’s agents.

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant tó abide event.

Gildebslebve and McCall, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide.event.