Waterside Holding Corporation, Appellant, v. Charles Lask, Respondent

Waterside Holding Corporation, Appellant, v. Charles Lask, Respondent. First Department, November 6, 1931. Melville H. Cane of counsel [Pincus Berner with him on the brief; Ernst, Fox & Cane, attorneys], for the appellant. Henry Goldstein, for the respondent. [MAJORITY — Per Curiam.] Per Curiam. The Appellate Term has decided that a provision in a lease, waiving in advance a jury trial in the event of litigation between the landlord and tenant, is void as against public policy. This court has previously reversed a similar holding of the Appellate Term. (Zeesell Realty Co., Inc., v. Cunningham, 215 App. Div. 811.) We adhere to that view. On the merits the counterclaim set up by the tenant is insufficient. There was no evidence of negligence on the part of the landlord. (Drescher Rothberg Co. v. Landeker, 140 N. Y. Supp. 1025, quoted with approval in Kessler v. The Ansonia, 253 N. Y. 453.) The determination of the Appellate Term should be reversed and the judgment of the Municipal Court modified to the extent of dismissing the counterclaim and granting judgment for the plaintiff as prayed for in the complaint, and as so modified affirmed, with costs to the appellant in all courts. Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ. Determination appealed from reversed and the judgment of the Municipal Court modified to the extent of dismissing the counterclaim and granting judgment for the plaintiff as prayed for in the complaint, and as so modified affirmed, with costs to the appellant in all courts.