John J. Adams, for appellant.
Wm. H. Sweny, for respondent.
This is an appeal from a judgment directed upon the pleadings in favor of the plaintiff and against the defendant.
The action is brought by the plaintiff to recover from the defendant rent of a flat in the premises known as No. 23 West Twentieth street in the city of New York, for the months of August and September, 1895, covenanted to be paid by defendant in a written lease for the term of two years from November 1, 1894.
The action is brought on an express covenant to pay rent.
In such an action plaintiff in his complaint need not allege nor prove that the defendant occupied or enjoyed the premises. Gilhooley v. Washington, 4 N.Y. 217.
For that reason the denial in the first paragraph of defendant's answer does not avail him.
It appears, therefore, that the plaintiff's cause of action, as set up in his complaint, is fully admitted by the answer.
Defendant must, therefore, rely upon the affirmative defense set up in the third paragraph of his answer, to wit, surrender and acceptance.
This defense as pleaded did not arise until August 12, 1895, while the rent for the month of August was payable on August first, in advance, so that plaintiff was clearly entitled to a direction for one month's rent.
To the motion for judgment on the answer, which was granted, defendant took a general exception, thereby disputing that plaintiff was entitled to any judgment at all, when he was clearly entitled to judgment for one month's rent, and wholly failed to raise the specific question of defense to the rent for the month of September.
Defendant omitting to call the attention of the court to the question of the liability for the rent for the month of September upon the trial, it is too late to raise it on appeal. Tuers v. Tuers, 100 N.Y. 196.
Judgment is, therefore, affirmed, with costs.
VAN WYCK, Ch. J., and McCARTHY, J., concur.
Judgment affirmed, with costs.