Opinion
May, 1899.
Townsend, Dyett Levy, for appellant.
Erdman, Levy Mayer, for respondent.
According to the plaintiff, an agreement was made between the parties, whereby the plaintiff was to sublet, and the defendant was to hire two vacant lots at One Hundred and Seventh street and Second avenue for a term of five years, at a specified rate per annum, and there was given a paper running: "New York, Oct. 5, 1898. Received from Josiah Dahut, fifty dollars ($50), payment on account of $135, to be deposited by said Dahut to me under the lease agreed upon between him and me to-day. J. Roberts." A proposed lease was drawn by the defendant's lawyer. It was not executed, but destroyed. Soon after the plaintiff met the defendant, upon his request by postal card, at the corner of One Hundred and Seventh street and Second avenue, when and where the latter said he had consulted his lawyer, and the best way for him was to buy the property, and "before buying he wanted an understanding about the lease over the trouble, how much was wanted for releasing him from it," and that he finally offered to pay after the passing of the title $150 for a release from the lease, but wanted the 450 already given deducted. This was accepted. When the plaintiff heard that the title was passed he went for his money, but was put off until the next morning, when the defendant borrowed from a neighbor, a check for $25, which he handed over. The action was brought for $75, as balance due upon an agreement to release the defendant from a verbal lease of land for a term of five years. The whole story about the alleged street meeting and the agreement sued upon was denied by the defendant, who said that he purchased the property at the instance of the plaintiff, who wished to be relieved of certain obligations about the erection of a building and to receive a sum to be paid by the owner of the premises in the event of the sale thereof; that the plaintiff was present at the passing of the title; that after wards he called at the defendant's place of business, complaining of poverty, said that the payment from the vendor was not to come in some time, and asked for something for his trouble, and that he, the defendant, then paid him $25, partly as a present, partly to dispose of the matter. As to several incidents testified to by the defendant, he was corroborated by the neighbor, who loaned the check, by his foreman and by his son, all of whom said that the defendant declared when he made the payment: This finishes, respectively settles, the One Hundred and Seventh street lots. The neighbor did not hear all the conversation. The two latter witnesses concurred with the defendant in saying that the sum of $150 was mentioned at the interview, but only by the plaintiff in a proposal to obtain another piece of property for the defendant at a commission of $150. These circumstantial relations of the defendant and of his three witnesses were not contradicted by the plaintiff, who again testified for himself, excepting that he said in general terms that the testimony of the three last was untrue. The preponderance of evidence is decidedly in favor of the defendant. It is supported, moreover, by improbabilities in the plaintiff's story, and especially by the unlikelihood that the defendant, acting throughout under advice of counsel, would have been allowed to bind himself, as claimed by the plaintiff, to pay money to secure release from an agreement void by the Statute of Frauds.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.
FREEDMAN, J., concurs.
In the absence of more convincing proof, I think injustice would be done were this judgment affirmed.
Judgment reversed and new trial ordered, with costs to appellant to abide event.