Opinion · Nylaw New York
NIEDERMAN v. STRAUS, 286 App. Div. 1098 (1955)
LOUIS NIEDERMAN, Respondent, v. NATHAN STRAUS et al., Appellants., 286 A.D. 1098 (Appellate Division of the Supreme Court of New York, Second Department. 1955)
- Type
- Opinion
- Court
- Nylaw New York
- Jurisdiction
- Nylaw
- Date
- 1955-11-14
- Topic
- general
NIEDERMAN v. STRAUS, 286 App. Div. 1098 (1955) LOUIS NIEDERMAN, Respondent, v. NATHAN STRAUS et al., Appellants.Appellate Division of the Supreme Court of New York, Second Department. November 14, 1955.
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NIEDERMAN v. STRAUS,286 App. Div. 1098(1955)
LOUIS NIEDERMAN, Respondent, v. NATHAN STRAUS et al., Appellants.
Appellate Division of the Supreme Court of New York, Second Department.
On March 18, 1948, a final order was granted to the landlord of the building at 8507-21st Avenue, Brooklyn, New York, awarding possession of the store, which had been occupied by defendant Siegel for approximately seventeen years. Defendant Straus, a brother-in-law of defendant Siegel, owned the building at 8508-21st Avenue, where plaintiff occupied a store. On April 28, 1948, Straus transferred to Siegel a half interest in the building at 8508, for which Siegel "paid" Straus $500 in cash and a $3,000 note. Defendant Straus never received either the money or the note. Instead, the money and the note were held by an attorney, who is a brother of defendant Straus and of the wife of defendant Siegel. On April 29, 1948, Straus and Siegel served a thirty-day notice on plaintiff to vacate the store at 8508, and on June 11, 1948, instituted a summary proceeding to recover possession of the said store. On August 4, 1948, plaintiff agreed with the equitable owners of 8507 for a lease of part of the store at 8507. On October 7, 1948, the summary proceeding instituted by Straus and Siegel was dismissed for nonappearance of both sides. On or about November 30, 1948, plaintiff moved from 8508 to 8507; Siegel movedPage 1099from 8507 to 8508. On January 18, 1949, Siegel retransferred his half interest in the building at 8508 to Straus, at which time Siegel received back his $500 in cash and the $3,000 note he had given to Straus in April, 1948. Plaintiff seeks to recover damages against Straus for wrongful dispossession under subdivision (d) of section 8 of the Business Rent Law (L. 1945, ch. 314, as amd.) and against both defendants for common-law fraud. The jury found in favor of plaintiff for $2,000 on the first cause of action and for $1,000 on the second cause of action. The trial court allowed interest from April 29, 1948. Judgment reversed and a new trial granted, with costs to abide the event, unless plaintiff stipulate, within ten days after the entry of the order hereon, to reduce the verdict to a total of $1,000, with interest from November 30, 1948, in which event the judgment, as so reduced, is affirmed, with costs to respondent. The finding of the jury that the sale by Straus to Siegel of the half interest in the building at 8508 was a subterfuge is in accord with the weight of the evidence. That plaintiff moved from 8508 on or about November 30, 1948, after the summary proceeding was dismissed for nonappearance on October 7, 1948, is immaterial. The nonappearance was the result of the execution of the agreement of August 4, 1948, which in turn was the result of the then pending summary proceeding against plaintiff. The strategy of Straus and Siegel in not appearing on October 7, 1948, and having the summary proceeding dismissed, rather than having a final order entered on plaintiff's consent in accordance with the provisions of the agreement of August 4, 1948, may not enure to defendants' benefit. The recovery against Siegel was proper because he was a landlord within the definition contained in subdivision (d) of section 2 of the Business Rent Law (L. 1945, ch. 314, as amd.). The trial court correctly charged that the damages as to both causes of action are the same. There is no basis in the evidence for a recovery of more than $1,000 on each cause of action. However, the recovery on each of the causes of action may not be added together, but consist of a single total recovery of $1,000 for the same damage. Interest was properly added to the recovery, but should have been computed from November 30, 1948, instead of from April 29, 1948. Wenzel, Acting P.J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.