Sgambellone v. Fournier

Memorandum: The trial court was correct in ruling that the defendant Fournier was not evicted from part of the leased premises. (O’Brien v. Smith, 59 Hun 624, opinion in 13 N. Y. S. 408, affd. 129 N. Y. 620; Forshaw v. Hathaway, 112 Misc. 112; Kelsey v. Ward, 38 N. Y. 83; Boreel v. Lawton, 90 N. Y. 293.) The defendant Fournier having been called by the plaintiff and testified to the making of the lease, entering upon the premises and paying three months’ rent, and further that he collected rent from the corporate defendant, had by that testimony negated his allegations of eviction. The offer of proof by the defendant was limited to the question of his alleged eviction by the plaintiff. The court having dismissed the separate defense, which alleged eviction, such proof was not admissible. The counterclaims having been dismissed by stipulation there remained no question to be litigated. While we agree that ordinarily a motion for a directed verdict cannot be made until both sides have rested their case, we think under the circumstances of this case, with no question of fact remaining, the trial court was not in error in entertaining and determining the motion. All concur. (Appeal from a judgment for plaintiff and against defendant Fournier in an action to recover rentals.) Present — Taylor, P. J., MeCurn, Vaughan, Piper and Wheeler, JJ. [See 280 App. Div. 881.]