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(202 N.Y.S.) Action by Morris Bloom and another against Bessie Hershowitz. From an order granting a summary judgment for plaintiffs, and from the judgment entered thereon, defendant appeals. Judgment and order reversed, and motion denied.

Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

Allan Deutsch, of New York City, for appellant.

Halperin & Muney, of New York City (H. J. Halperin, of New York City, of counsel), for respondents.

DELEHANTY, J. The action is on an assigned claim of the Art Silk Knitting Mills, Inc., the lessor of a loft, part of which it leased to defendant. The lease provided that defendant was to pay, in addition to the stipulated monthly rental, a sum equal to 'one-third of the cost of installation of burglar protection device or alarm system, together with a sum equal to one-third of the cost of the maintenance and service of same.

The action was to recover one-third of the cost of the maintenance and service charge, fixed at $375. The defendant for her answer interposed a general denial, payment, and accord and satisfaction. the issue presented plaintiff made a motion for summary judgment, the affidavit for which was made by Litewitz, one of the plaintiffs, who deposed that he was the president of the Art Silk Knitting Mills, Inc., and was fully acquainted with all the affairs of the said corporation, and knows that payment of the sum demanded herein was never made, and that the answer of defendant is interposed for delay. The affidavit of defendant, submitted in opposition to the motion, admits the making of the lease in question, and alleges that no bills were ever submitted to her for the maintenance charge in question, nor was any such charge demanded by plaintiffs' assignors. She denied that $375 is the reasonable charge for maintenance, and denies that plaintiffs are entitled to said sum of money. She further alleges that, subsequent to the execution of the lease in question, plaintiffs' assignors made and entered into a new agreement with her, whereby she agreed to continue in the occupation of a portion of the demised premises for another year, and that plaintiffs' assignors agreetl to waive the payment of such maintenance charge upon her agreeing to pay one-third of the water charge, which provision was not included in the original lease; that thereafter the security deposited by her on the original lease was returned to her and applied again to the new lease.

In Gravenhorst v. Zimmerman, 236 N. Y. 22, 139 N. E. 766, it is held that, if the defendant makes it appear that under any one of the defenses a genuine and substantial issue is created, defendant is entitled to a trial in the regular order, and a summary judgment is improper. It seems to me that there are two substantial issues raised by the defendant's affidavit, which entitle her to a trial herein. The first is whether the sum of $375 is one-third of the reasonable maintenance charge above referred to, and the second whether that maintenance charge, whatever it may be, was waived by plaintiffs' assignor in consideration of defendant's execution of the new agreement in ques

tion. It follows that the order appealed from must be reversed, with costs.

Judgment and order reversed, with $10 costs, and motion denied. All concur.

CLOUD v. COSTELLO et al. (Supreme Court, Appellate Term, First Department. December 12, 1923.) Landlord and tenant cm 29(1) -Agreement made to evade rent laws held void.

Where lessor knew that the leased premises were to be occupied by lessee and his family as a dwelling place, an agreement reciting that the premises were to be used for business purposes, and did not come within the emergency housing laws, held void as against public policy, being an attempt to evade those laws, or to secure indirectly a waiver of their provisions.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Summary proceeding by Agnes Cloud, landlord, against John A. Costelio, tenant, and nine others, undertenants. From an order striking out the answer as insufficient in law and a final order in favor of landlord, tenant appeals. Orders reversed, and motion denied.

Argued November term, 1923, before GUY, BIJUR, and DELEHANTY, JJ.

Kelley & Connelly, of New York City (W. P. Cavanaugh, of New York City, of counsel), for appellant.

Kreutzer & Slack, of New York City (Meyer H. Slack, of New York City, of counsel), for respondent.

PER CURIAM. Without entering upon the somewhat elaborate details of this case, it suffices to state that the question raised is solely as follows: The agreement between the landlord and tenant, whether in the form of a lease or collateral agreements, is to the effect that the landlord "authorized the use of the premises as a furnished rooni house," and the tenant agreed that the said premises can be used for and shall be used as and for business purposes, and do not come within the purview of the housing laws," and "that the tenant will vacate the premises on the termination of the lease.”

To the landlord's petition for a final order in summary proceedings to remove the tenant as a holdover after the end of the term, the tenant had interposed the defense of protection under the housing laws, and has alleged that the landlord, "for the purpose of evading the rent laws, made a lease of said premises to the tenant, well knowing that the same were to be occupied by him and his family as a dwelling place, and fraudulently and unlawfully inserted in said lease a clause that said premises were used and were to be used only for business purposes, which was contrary to the fact, as was well known to the landlord.” A lease intentionally made in form intended to evade the rent laws, although the facts would bring the case within those laws, must neces-, sarily be void as against public policy. em For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N. Y.S.) From another point of view the false form of the lease is merely a device to secure indirectly what is directly forbidden by these laws, namely, a waiver of their provisions. From either aspect the defense was good, and the order directing that the answer containing the same be stricken out should be reversed.

Final order and order reversed, with $10 costs, and motion denied, with $10 costs.

BUFFALO PORCELAIN ENAMELING CORPORATION V. PARAMOUNT

SERVICE CORPORATION.

(Supreme Court, Special Term, Erle County. December, 1923.) 1. Bills and notes 525—Knowledge that goods previously bought were defective no proof of indorsee's knowledge of existing equities.

In an indorsee's action on a draft given for goods purchased, evidence that he took the draft with knowledge of drawer's claims that similar goods previously purchased and paid for were defective held no proof that he took with knowledge of any equities then existing in favor of

drawer against payee for breach of warranty. 2. Judgment en 185-Indorsee of draft held entitled to judgment on pleadings.

Where, in an indorsee's action on a draft for goods purchased, defendants counterclaimed for breach of warranty of similar goods previously purchased, but plaintiff's motion papers for judgment on the pleadings established that it did not sell the goods, which defendants answering affidavits did not disprove, the answer was stricken out and judgment

entered for plaintiff, under Civil Practice Rules, rule 113. Action by the Buffalo Porcelain Enameling Corporation against the Paramount Service Corporation. On plaintiff's motion for judgment on the pleadings. Motion granted.

Charles W. Strong, of Buffalo, for plaintiff.

Hussey & OʻCallahan, of New York City (James P. Cotter, of Buffalo, of counsel), for defendant.

BROWN, J. Pressed Steel Company sold and delivered one carload of tub covers to R. P. Hussey & Co. on February 18, 1923, for $4,184.65. The defendant corporation was organized March 15, 1923, taking over the business of Hussey & Co. The defendant paid the purchase price of $4,184.65 of the tub covers to the Pressed Steel Company in three payments, one of $750 April 9, 1923, $1,250 June 9, 1923, and $2,184.65 June 11, 1923.

On or before June 16, 1923, the Pressed Steel Company had sold and delivered a carload of tub covers to the defendant, on which date the defendant gave Pressed Steel Company one check dated June 22, 1923, for $650, and one check dated July 6, 1923, for $727, and the draft described in the complaint, maturing August 1, 1923, for $2,000, in payment therefor. The $2,000 draft, on June 19, 1923, was duly indorsed and delivered by the Pressed Steel Company to the plaintiff for value. The plaintiff claims to be the bona fide owner and holder of said draft in due course. Defendant's answer denies, upon infor mation and belief, that the Pressed Steel Company duly indorsed and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

delivered such draft to the plaintiff for a good and valuable consideration before maturity.

[1] Plaintiff's proofs establish that it became the owner of such draft on June 19, 1923, for value to whom it was delivered by the Pressed Steel Company, duly indorsed. The defendant's proofs tend to establish that on April 23, 1923, the plaintiff's general manager and treasurer had knowledge that R. P. Hussey & Co. were complaining to the Pressed Steel Company that certain of the tub covers sold by the Pressed Steel Company on February 18, 1923, were defective. Such knowledge on the part of plaintiff is no proof that it took the draft on June 19, 1923, with knowledge that the defendant had a counterclaim to the draft for damages occasioned by breach of warranty of the condition of tub covers sold in February. Plaintiff took the draft June 19, 1923, at which time the defendant had paid the Pressed Steel Company in full for the tub covers it bought in February. Such proof does not tend to establish that plaintiff took the draft June 19, 1923, with knowledge of any equities of any character then existing in favor of the defendant against the payee of the draft, the Pressed Steel Company.

[2] The defendant's counterclaim is based on the charge that the plaintiff and the Pressed Steel Company, in February, 1923, sold to the defendant certain tub covers, for which defendant paid $4,184.65; that such sale was made upon the warranty of plaintiff and the Pressed Steel Company that such tub covers were in good condition; that such tub covers were not in good condition, causing damage to defendant in the sum of $3,000, for which sum defendant demands judgment against plaintiff. The plaintiff's motion papers establish that the plaintiff did not sell any tub covers to defendant in February, 1923. The defendant's answering affidavits in no way tend to establish a sale by plaintiff to defendant of the tub covers in question. There is not a suggestion in defendant's proofs that the plaintiff had any interest in the sale of the tub covers in February, 1923, that were sold by the Pressed Steel Company to the defendant. The defendant alleges in the counterclaim that it paid $4,184.65 for the tub covers. No claim is made that it paid such sum, or any part thereof, to the plaintiff. The proof is that such payment was made to the Pressed Steel Company in three payments: Check of $750, April 9, 1923; trade acceptance of $1,250, paid June 9, 1923; and a trade acceptance of $2,184.65 June 11. 1923.

By the provisions of rule 113 of Rules of Civil Practice, an answer may be stricken out and judgment entered on proofs of plaintiff's cause of action, unless the defendant, by affidavit or other proof, shall show such facts as may be deemed sufficient to entitle him to defend.

Plaintiff may have an order striking out defendant's answer, and for judgment in accordance with the demand in the complaint, with $10 costs,

(202 N. Y.S.)

JUHASZ v. KOCOR et al. (Supreme Court, Special Term, Erie County. December, 1923.) 1. Brokers 52, 54, 64(1)-Commission, when earned.

Ordinarily a broker has earned his commission, if he procures a purchaser who is ready, able, and willing to purchase at vendor's price, or if vendor and purchaser make a contract for the sale, even if the purchaser, for any reason in no way attributable to broker, refuses to consummate

the sale. 2. Brokers 61(4)-Broker not entitled to commission on purchaser's refusal

to complete sale for broker's concealment of lease,

Where a real estate broker told a prospective purchaser that he had a soft drink place for sale, and the contract provided for possession of the premises on a certain date, though he knew that he could not deliver possession at the time specified, because the premises were leased for two years, he was not entitled to commission on purchaser's refusal to consummate the sale, since his concealment of the lease was the cause of the refusal.

Appeal from City Court of Buffalo.

Action by Joseph Juhasz, Jr., against Julius Kocor and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

Philip Catalano, of Buffalo, for appellants.
Morris Weinstein, of Buffalo, for respondent.

BROWN, J. In April, 1923, defendants' asked plaintiff if he had any soft drink places for sale. Plaintiff stated that he had 103 Thompson street, and offered that property to the defendants. Defendants stated to plaintiff that they did not have enough money; that plaintiff would have to sell their property first. Plaintiff told defendants that he could sell their property, provided the man took their property in exchange, but that they would have to pay plaintiff 3 per cent. cominission. Defendants owned premises known as 23 Sunnyside, and one Liesenfeld owned 103 Thompson street. Plaintiff took defendants to 103 Thompson street, a soft drink place, and thereafter the plaintiff prepared one contract, whereby the defendants agreed to sell to Liesenfeld 23 Sunnyside for $8,000, to be paid by Liesenfeld, as follows: "Subject to present mortgage of $2,800, and the balance in equity from premises known as 103 Thompson street." Deed to be delivered to Liesenfeld April 20, 1923, together with search showing a marketable title. Plaintiff also prepared a contract, whereby Liesenfeld agreed to sell to defendants 103 Thompson street for $16,000, to be paid $5,200 in equity from 23 Sunnyside, and balance by mortgage. Possession to be delivered to defendants on delivery of deed on April 20, 1923. Each of these contracts was signed by defendants and Liesenfeld and wife, and delivered.

On April 20, 1923, Liesenfeld tendered defendants a deed of 103 Thompson street and demanded a deed of 23 Sunnyside. Defendants refused to convey, stating, among other reasons, that they could not go into the soft drink business at 103 Thompson street, on account of those For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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