Thames Building & Contracting Co. v. Iaccio , 128 Misc. 845 ( 1927 )

Lydon, J.

Plaintiff is the owner of the premises No. 426 First avenue, New York city. Defendant was a monthly tenant of an apartment on the second floor. He failed to pay the rent for the months of April and May, 1926, at the agreed sum of $25 per month, and this action is brought to recover said rent. It is not denied by defendant that the rent sued for has not been paid, and it was, therefore, error for the trial court to have dismissed the complaint. The court below granted the defendant a judgment of $100 on his counterclaim, which is predicated as work, labor and services and material furnished in the matter of the alteration made by the defendant to his own apartment and which he claims the plaintiff through his agent promised to pay for. It appears that the defendant when he first inspected this apartment with an idea of renting it found that it consisted of but two rooms, and he told the agent for the plaintiff that he could not use the same in its then condition, whereupon he claims the agent told him that in view of the fact that he was a carpenter he could make the alteration and the plaintiff would pay for it. The defendant did make the alteration, changing the two rooms into four, and by his counterclaim seeks to be reimbursed for the cost. The only evidence offered by the defendant as to the value of the work, labor and services and materials furnished consisted of the following: “ Q. Now how much do you say that that cost? A. $150.”

This evidence is wholly insufficient. While it is true that a witness may place a value on his own services, yet a witness as to value should detail the facts upon which his inference or conclusion is based. The defendant should have offered testimony as to the value of the materials furnished as well as the actual time consumed and the rate of compensation applicable thereto. Aside from that defect in proof the record discloses in the testimony of the defendant that the alteration was made in the month of October, 1924, the first month that he moved into the premises; that he vacated the premises on May 19, 1926, and that he paid his rent continuously and punctually in the interim except for the last two months of occupancy, which is the rent now sued for. It further appears from the record that the defendant never rendered a statement or bill to the landlord for $150 or any other amount, nor did he render any estimate to the plaintiff for the work to be done in the matter of that alteration. It requires no argument to convince me that landlords do not authorize expenditures in the manner claimed by the defendant, and furthermore it is a most significant fact that the defendant never refused or failed to pay his rent until just before he moved out. He now sets up this alleged counterclaim for work claimed to have been done nearly two years before he vacated the premises. In these circumstances I cannot resist the conclusion that the alleged counterclaim is fictitious and mere afterthought. If this defendant had a valid claim against the plaintiff for work, labor and services and material furnished he would not have waited until he vacated the premises to assert his rights. The dismissal of the plaintiff’s cause of action was error and the judgment entered in favor of the defendant on the counterclaim is clearly against the weight of evidence and must be reversed and a new trial ordered, with thirty dollars costs to the appellant to abide the event.

Delehanty, J., concurs.