Robinson v. McDonald

Lyon, J.: The question litigated in the City Court was whether the defendant rented the house of the plaintiff for the term from September 1, 1916, to April 1, 1917, as the plaintiff claims, or merely from month to month, as the defendant claims. The defendant testified that in October he promised the plaintiff he would give her one month’s notice of intention to abandon the leased premises which he abandoned November [365] thirtieth. The notice was dated and served on November sixth. The defendant now claims that such promise was without consideration and void. In this he is doubtless correct, as the plaintiff denies that the defendant ever agreed to give such notice. (Bronner v. Walter, 15 App. Div. 295; Hirschfield v. Alsberg, 47 Misc. Rep. 141; Schiff v. Pottlitzer, 51 id. 611.) The acting city judge held that the notice was a failure to carry out the lessee’s contract to give thirty days’ notice of intention to abandon the premises, whereas if he had found that the leasing was for a full term, he should have held the defendant liable for the rent; and if he had found that the leasing was from month to month, he should have found for the defendant. The result is a mistrial, for which the judgment should be reversed, without costs in this court or' in the County Court, and a new trial ordered in the City Court. All concurred. .Judgment of County Court and City Court reversed on the ground that there was a mistrial and said judgments are not sustained by the evidence, and a new trial granted in the City Court, without costs to either party.