Citation Numbers: 95 Misc. 243, 158 N.Y.S. 734
Judges: Cohalan
Filed Date: 5/15/1916
Status: Precedential
Modified Date: 1/13/2023
The plaintiff herein leased to the defendant a building and a basement therein from month to month at an agreed rental of fifty-five dollars per month. He brought this action to recover for eighteen months’ rent from July 1,1914, to January 1,1916.
Defendant admitted the nonpayment of the rent for the time claimed, but pleaded two defenses and counterclaims, one of which he abandoned at the trial. The defense and. counterclaim tried, was that the defendant claimed that the plaintiff had since December, 1911, used a portion of the demised premises for the storage of an automobile body and seven small boxes or drawers taken out of a desk or bureau. This storage was not disputed by the plaintiff. The automobile body was changed each fall and spring, one body being a
The testimony was taken before a jury, the defendant assuming the burden of sustaining his defense and counterclaim. At the close of the case, the plaintiff moved to dismiss this defense and counterclaim, and the defendant asked leave to go to the jury “ upon the facts and upon the issues in the case. ’ ’ He made no statement however as to what he claimed to be the issues in the case. Plaintiff’s motion was granted and the defendant’s motion was denied. Judgment was thereupon rendered in favor of plaintiff for the entire amount of .his claim, but whether by the jury upon direction of the court does not appear. The evidence is undisputed that the storage of the articles by the plaintiff during the whole time they were in the demised premises was with the knowledge and consent of the defendant, and that he acquiesced therein without any objection. He frequently and always when asked to do so furnished the key of the building to the plaintiff or to his employees to enable them to enter whenever they wished to change the car body or for other purposes. None of the (dements of an actual partial eviction of any portion of the demised premises was shown, and there was no evidence that the plaintiff ever wrongfully or unlawfully entered the premises or attempted to exercise any rights to any portion of the premises in hos
If one performs services for another with his knowledge and consent by reason of which the other is benefited there is an implied promise of payment therefor. Sheldon v. Sherman, 42 Barb. 368. The defendant testified that the use of the portion of the premises used by plaintiff was worth from twenty to twenty-five dollars per month, but no proof as to the value of such use was offered by the plaintiff. What was the fair and reasonable value of the use of that-portion of the demised premises occupied by the plaintiff should have been submitted to the jury for their determination. For this reason there must be a new trial and upon such new trial the only issue to be tried is that of the fair and reasonable value of the use of that portion of the leased premises used by the plaintig and for the time it was so occupied.
Judgment reversed, new trial ordered, with thirty dollars costs to appellant to abide the event, and upon such new trial the only issue to be tried is the value of the use of that portion of the premises occupied by the plaintiff. Municipal Ct. Code, § 129, subd. 5.
G-uy, J., concurs; Whitaker, J., dissents.
Judgment reversed, new trial ordered, with costs1 to appellant to abide event.