Nagel Realty Co. v. Freund

GUY, J. This was -a summary proceeding to dispossess a tenant and 'undertenants for holding over. The answer denied various allegations of the petition, including that of holding over-, and also averred, as a separate defense, an extension of the lease until September 30, 1915. On the trial the undertenant withdrew all denials, so that there [518] was but one issue to be tried — the special agreement for a lease. A motion by plaintiff for judgment upon the pleadings was denied. [1] The defendants appellants gave proof on an extension of the lease, including alleged dealings with a janitor in plaintiff’s employ. The landlord denied the extension and introduced proof in support of such denial. The janitor was not called by either side. The defendants claimed the affirmative, and asked leave to close with the jury on the only issue of fact submitted to the jury; i. e., whether, as alleged in the separate defense set up in the answer, plaintiff and defendant entered into an agreement for the extension of the lease until September 30, 1915. This motion was denied, under exception by the defendant, nothwithstanding the fact that the court in its charge subsequently specifically submitted that issue to the jury, and charged the jury that the burden was upon the defendant to establish such defense by a preponderance of proof, and that, if he failed to do so, they must find a verdict in favor of plaintiff. In a close jury trial, the denial of the right to close is prejudicial error. Lake Ontario Nat. Bank v. Judson, 122 N. Y. 278, 282, 285, 25 N. E. 367. [2] The learned court also erroneously charged the jury that it was the tenant’s duty to call the janitor (who was admittedly in the landlord’s employ) to prove the alleged separate defense, and that the failure of the defendant to do so might be considered by the jury. Although this was subsequently somewhat modified in the judge’s charge, it was, even in the modified form, so prejudicial to the defendant as to call for a reversal of the order. The order must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.