Gruhn v. Gudebrod Bros.

Conlan, J. This is an appeal from a judgment in favor of the defendant, entered on the verdict of a jury, and from an order denying a motion for a new trial. The complaint alleges two causes of action.. The first cause of action was upon a written lease,, executed by the plaintiff to defendant, whereby the defendant agreed to pay plaintiff for a third loft in a building .in. the city of' Mew York, the yearly rental, of $1,100, in equal monthly payments. The second .cause of action was for the use and occupation of the second loft, in the same premises, from February 1, 1897, for which tire plaintiff alleges that the use was reasonably worth the sum of $400. . • ¡. As to the first cause of action, the court charged: the jury that it was the duty of the landlord to demand rent of the premises; that the landlord was bound to go once to the premises and demand payment of the rent This, we think, was" error. The action was brought on a covenant in the lease to pay the rent on the first day of every month. It is conceded that the June rent was not paid, nor is a tender either pleaded or proved.- . [529] The plaintiff was clearly entitled to recover on the first canse of action, and the misdirection of the court must have affected the minds of the jury in reaching the conclusion they did. The court had power to reverse a judgment for a misdirection, although no exception was taken at the time of the trial. Gillette v. Village of Kinderhook, 77 Hun, 604; Standard Oil Co. v. Amazon Ins. Co.,. 79 N. Y. 506. The judgment should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. Schuchman, J., concurs. Judgment reversed, and new trial ordered, with costs to appellant to abide event.