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Luxemburg v. Frumkes

Supreme Court, Appellate Term, Second Department
Feb 14, 1946
186 Misc. 187 (N.Y. App. Term 1946)

Opinion

February 14, 1946.

Appeal from the Municipal Court of the City of New York, Borough of Queens, ROEDER, J.

Charles H. Fier for appellant.

Martin Granirer for respondent.


MEMORANDUM


The landlord having made out a prima facie case, it was error to dismiss at the close of her case. The burden of establishing the defense of res judicata was upon the tenant. ( Griffen v. Keese, 187 N.Y. 454, 464; Reynolds v. Aetna Life Ins. Co., 160 N.Y. 635, 651; Carter v. Beckwith, 128 N.Y. 312, 323.) There were new facts claimed to have occurred since the former trial which went to the question of the landlord's good faith and immediate compelling necessity.

The final order should be unanimously reversed upon the law and new trial granted, with $10 costs to the landlord to abide the event.

MACCRATE, SMITH and STEINBRINK, JJ., concur.

Order reversed, etc.


Summaries of

Luxemburg v. Frumkes

Supreme Court, Appellate Term, Second Department
Feb 14, 1946
186 Misc. 187 (N.Y. App. Term 1946)
Case details for

Luxemburg v. Frumkes

Case Details

Full title:SARA LUXEMBURG, Landlord, Appellant, v. JOSEPH FRUMKES, Tenant, Respondent

Court:Supreme Court, Appellate Term, Second Department

Date published: Feb 14, 1946

Citations

186 Misc. 187 (N.Y. App. Term 1946)
61 N.Y.S.2d 852

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