Citation Numbers: 34 N.Y.S. 489, 87 Hun 522, 94 N.Y. Sup. Ct. 522, 68 N.Y. St. Rep. 496
Judges: Bradley
Filed Date: 6/21/1895
Status: Precedential
Modified Date: 1/13/2023
The main question' is whether or not, when the rent in question accrued, the defendants had the possession of the Grand avenue property; and that, for the purposes of this review, is dependent upon the question whether or not the defendants then had a right to the possession, under their contract with the Barrs. This is so because, independent of that fact, the finding of the jury upon the evidence is deemed conclusive. Less than two months before the contract was made, the defendants became agents of the Barrs to rent the Grand avenue premises. Thereafter, and after the sale on the mortgage foreclosure of the Lyell road property, bid off by the Barrs, and referee’s deed taken by them, the defendants rented the Grand avenue house and lot to a tenant from whom was derived the rent fund in question. 2io written lease was
It is insisted on the part of the defendants that the verdict was so against the weight of the evidence as to require the direction of a new trial. The evidence on the part of the defendants is to the effect that by arrangement between them and John Shaw, the owner of the Lyell road property, they undertook to make some disposition of it The precise nature of the understanding does not appear. They thereupon had some negotiations with the Barrs, which resulted in the contract of August 15, 1893, in which it is stated that the land was then “under foreclosure sale, and about to come into the hands” of the defendants, “in which event the said Barr Bros, agree to trade” the Grand avenue house and lot, as there stated. It was then contemplated between the parties to the contract that the defendants would take the title to the Lyell property on the foreclosure sale to be made that day. The sale was made and the property bid off by Shaw, pursuant to the understanding between him and the defendants. The required 10 per cent, was not paid. The sale was held open until 2 p. m. In the meantime one of the defendants and Shaw, being so advised by the lawyer having charge of the foreclosure proceedings, and concluding that it would be a shorter way to the result to have the Barrs bid off the property, called upon the plaintiff, and informed him that the sale was held open until 2 p. m.; and it may be assumed that they suggested to him that he bid in the property. He did so. The Barrs decline to convey the Grand avenue property to the defendants because the event which was to render the contract available to them, to wit, that the Lyell road property , should come into their hands, did not occur. It is quite evident that the defendant, when he made the suggestion to Barr to bid off the property, had in view the conveyance of the Grand avenue lot to the defendants pursuant to the contract. He testified that he was advised by the lawyer that it would simplify matters to have the referee’s deed made directly to the Barrs; that he so informed the plaintiff, who promised to accede to that view, and thereupon he was present, and bid off the property. This is corroborated by the testimony of Shaw. And there is evidence on the part of the defendants tending to prove that the Barrs, after the purchase, promised to carry out the arrangement by conveying the Grand avenue lot to the defendants, and directed the preparation of a deed, which was drawn accordingly, but never was executed. The plaintiff, by Ms evidence, tends to give a different phase to the transaction, and which is to the effect that he did not bid off the property and take the referee’s
The judgment and order should be affirmed. All concur.