Lewis v. Hosey , 56 N.Y.S. 200 ( 1899 )

Freedman, P. J.

This is an action brought by the plaintiffs to recover the sum of $18 claimed by them to be due for rent of certain premises for the month of April, 1898.

The whole question involved seems to be a question of fact, upon which both parties gave testimony directly in conflict.

The plaintiffs claiming that the payment of rent should date from the 1st of each month, and the defendant claiming that the payment of rent was to- date from the 6th or 7th of each month.

It is undisputed that the defendant took possession of the premises on the 6th or 7th day of January, 1898, paying therefor the sum of $9, according to the agreement that one-half month’s rent-should only be charged for the first month. On the 7th day of February he paid $18, the monthly rental, and again on the 6th day of March. He vacated the premises on the 7th of April. These facts coupled with the testimony as to the contents of the receipts (which testimony was inadmissible if it had been properly objected to), created such a conflict of testimony that the judgment of the trial court should not be disturbed. As the respondent failed to appear, no costs should be awarded.

MacLean and Leventritt, JJ., concur.

Judgment affirmed, without costs.