Bayles v. Clark (115 A.D. 33, 1906)

Woodward, J.:

This action was brought to recover one hundred and fifty, dollars rent, for certain premises situated at Echo, Suffolk county. The "action was brought in Justice’s Court, resulting in a verdict for the plaintiff. On an appeal for a new trial in the County Court, the trial was held on the 11th day of December, 1905, resulting in a verdict for the plaintiff for twenty-five dollars, and as this did not carry costs, the plaintiff is appealing from the' judgment entered' against him for the sum of forty-eight dollars and twenty-eight cents. The undisputed facts are that the plaintiff was the owner of’ the.premises demised to the defendants; that the defendants some time prior to the 15th day of May, 1903, visited the premises and examined them with a view of renting the same; that they looked through the house, no effort being made to prevent them going into any part of the same, and that they agreed to take tlie same at the price then named by the plaintiff ; that they did enter into possession of the premises on the 15th day of May, 1903, paying twenty-five dollars in advancethat- on the twenty-fifth day of May the parties entered into a written lease, which recited that the term was to commence on the 15th day of May, 1903, and to end on the fourteenth day of May one year later. There was also embodied in this lease an option to purchase, but it has no bearing upon the question here involved. The defendants,-who were in possession under the Conditions which were afterward embodied in the written lease, remained in possession,, paying rent except for one month, up" to-“just before” September 15, 1903, when they delivered the key of the house, not to the plaintiff’s agent or himself, but to the village postmaster, and-abandoned the premises. The defense now urged, and which counsel concedes was the theory upon which the case was tried, is that the plaintiff was guilty of fraudulent misrepresentations, inducing the defendants-to sign- the lease under such misrepresentations, and the jury has found in favor'of.the defendants, except as to the- one month during which' the premises were occupied and for which no rent was paid, and the plaintiff appeals from the judgment.

The fraudulent representations alleged, and which may he deemed .to have been established, consisted in the plaintiff stating that the house, which showed evidences of being out of repair so that the roof leaked, liad been repaired and that it was now all right. There is no evidence .whatever that this representation was false to the knowledge of the plaintiffit is not questioned that repairs had been made, and there is no evidence that the plaintiff did not have reason to be'lieve the repairs had accomplished the purpose. .There is some evidence that the roof did, in fact, leak after the defendants had been in possession for some time, but there was no covenant in the lease that the premises were in good repair or th