Michels v. Studnitz

ERLANGER, J. By a verified complaint the plaintiff herein set forth that on August 25, 1905, he entered into a lease with the defendant, and refers to a copy of the same attached to and made a part of the complaint. He avers that, to induce him to enter into said lease, the defendant represented to him that he (defendant) held a lease in writing from the owner in fee of the premises “covering the basement” described in the lease attached to the complaint, which lease from such owner had more than 21 months to run from September 1,. 1905. Then follow allegations of the occupation of said basement by plaintiff, the terms „and payment of rent, that the defendant did not have a lease covering said term, that the representations as to der fendant having such a lease were false and untrue, that plaintiff was lawfully evicted from the premises on December 5, 1905, by said owner, and that plaintiff was damaged in the sum of $.250. • He recovered a judgment for $150, from which judgment the defendant appeals. Upon the trial the plaintiff was permitted, over objection and exception, to give conversations had between himself and the defendant, prior to the making of his lease, tending to show that the defendant had leased to the plaintiff the sidewalk in front of the basement to enable the plaintiff to erect an oyster stand thereon. The lease between the parties makes no mention of any portion of the sidewalk, and confers no right upon the plaintiff to erect a stand thereon, but lets only the basement to the plaintiff for the term of 21 months from September 1, 1905; nor does plaintiff’s complaint allege that any portion of the sidewalk was let to plaintiff. The defendant produced a lease of the entire premises to himself and wife from the owner, running from May 1; 1905, to May 1, 1910, and showed that he occupied said premises at the time of .the trial; and it was also shown by plaintiff’s own admission that no dispossession proceeding had ever been commenced against him, and the only evidence that plaintiff was ever in any way disturbed in his possession of that portion of the premises covered by his lease is his testimony to the effect that defendant asked. [818] him (plaintiff) to move out of the basement, that plaintiff put a lock on, that it was broken, and “it is thrown all my things out.” Subsequently, however, he was asked, “When did you move your things from the basement?” and he replied, “They are still there.” It appears that the plaintiff erected an oyster stand in front of the premises, which he was compelled to remove some three months after its erection; the plaintiff testifying that the defendant said: “The landlord don’t want the stand outside.” He further testified that he tried to put the stand in the basement, and “the board of health came and took it.” The testimony of conversations between the parties leading up to and prior to the making of the lease were incompetent and inadmissible as evidence, as all prior negotiations were merged in the written lease subsequently entered into between the parties. Daly v. Piza, 105 App. Div. 496, 94 N. Y. Supp. 154. Neither was it, shown that the plaintiff was ever evicted from possession of the premises in question. It may also be said that the plaintiff utterly failed to prove any damages. Not a particle of competent testimony appears in the record, showing or tending to show that any damages were suffered by the plaintiff of any description. He says he paid $20 per month rent for October, November, and December; but, as he actually occupied the premises during- that time, the payment of such rent could not be allowed as damages. When asked if he paid anything for that stand, and putting it up, he answered: “This cost about $300, $150, $175.” This can hardly be considered a competent measure of damage, or testimony that would warrant the trial judge in rendering a judgment as he did for the sum of $150. The plaintiff wholly failed to make out a cause of action against the defendant as set forth in his complaint, the proof offered by him was insufficient to support one, and the judgment is erroneous, and must be reversed. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.