Hays v. Haffen ( 1900 )

Scotchman, J.

On this appeal, we are confined to questions-of law raised by the exceptions. On motion of defendants a $150' item for rental set up in the complaint was dismissed from consideration by the court. In relation to this item, the complaint alleges that Mrs. Hull, on or about April—, 1894,leased premises at the southeast corner of One Hundred and Thirtieth street and Third avenue to the defendants, as tenants, by the month, at a rental of $250 per month; that the defendants continued in the possession of said premises until January, 1898; that the amount of rental was. reduced from time to time to $150; that the defendants paid to Mrs. Hull and these plaintiffs the rent up to December 1, 1897, but have not paid the rent for the month of December, 1897.' The answer is a general denial. The proofs at the trial show that Mrs. Hull, in April, 1894, told Mr. Haffen, one of the defendants, that she could not give him a lease on account of the city taking the property, but she would give it to him as long as she had possession of it at $250 per month; that Mr. Haffen shd “ I will take it; ” that Haffen entered into possession of the premises and continued therein until January 1, 1898, paying rent promptly, which rent, $250, was gradually reduced to $150, but failing to pay the rent for the month of December, 1897. These proofs standing uncontradicted, entitled the plaintiffs to judgment for this $150 item, and the granting of the motion, dismissing the complaint as to this item, which was duly excepted to by the plaintiffs, was an error. It is true that the defendants, to prove nonliability for the rent of the month of December,- 1897, introduced at the trial certain condemnation proceedings instituted by the city authorities in the Supreme Court in November, 1897; but the admission thereof in evidence was strenuously objected to throughout the trial by plaintiffs on the ground that they were not pleaded, and the overruling of the objections was duly excepted to. Such matter of defense must be pleaded. Lodge v. Martin, 31 App. Div. 13.

Judgment appealed from reversed and new trial granted, with costs to appellants to abide the event.

Fitzsimofs, Ch. J., concurs.

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