Bladowsky v. Basser

Judgment unanimously reversed upon the law and new trial granted, with thirty dollars costs to the appellant to abide the event.

The proof of the plaintiff was to the effect that defendants represented falsely that the prior tenant was out of the premises and that plaintiff could go in and make alterations; that the plaintiff, relying thereon, entered into possession to make repairs, and was thereafter sued by the tenant whose term had not expired. If a jury believed plaintiff’s story, he would be entitled to recover the reasonable rental value of the premises from the date plaintiff entered until the expiration of the prior tenant’s term.. The amount to be recovered therefor, however, cannot exceed what was fixed as the value thereof in the action brought by the former tenant.

The burden of proving the latter amount is upon the defendant. In addition thereto, plaintiff would be entitled to recover a reasonable counsel fee, if any such incurred, together with any other expense necessarily incurred in the defense of the action brought against him.

Present: Cropsey, Lazansky and MacCrate, JJ.