Smith v. Applebaum

• Decision Date: 19 January 1928
• Docket Number: No. 61.,61.
• Citation: Smith v. Applebaum, 241 Mich. 493, 217 N.W. 401 (Mich. 1928)
• Parties: SMITH et al v. APPLEBAUM.
• Court: Michigan Supreme Court

241 Mich. 493

217 N.W. 401

SMITH et al

v.APPLEBAUM.

No. 61.

Supreme Court of Michigan.

Jan. 19, 1928.

Error to Circuit Court, Wayne County; Ormond F. Hunt, Judge.

Action by Henry C. Smith and another against Isaac Applebaum. Judgment for plaintiffs, and defendant brings error. Affirmed.

Argued before NORTH, FELLOWS, WIEST, CLARK, McDONALD, BIRD, and SHARPE, JJ.Groesbeck, Sempliner, Kelly & Baillie, of Detroit (Jason L. Honigman, of Detroit, of counsel), for appellant.

Oxtoby, Robison & Hull, of Detroit, for appellees.

SHARPE, J.

On July 11, 1927, plaintiffs brought this action to recover the rental due from defendant under a 99 year lease of certain premises in the city of Detroit, entered into on December 29, 1922. A copy of the lease was annexed to the declaration. The bill of particulars stated the specific installments claimed to be due. Defendant pleaded the general issue. On September 12th, plaintiffs moved for summary judgment. The motion was supported by the affidavit of Henry C. Smith, and was full and complete in every respect. On behalf of defendant, an affidavit of merits, made by his son, Harry R. Applebaum, was filed, which, omitting the formal parts, reads as follows:

‘That the cause of action arises upon a written lease, dated the 29th day of December, 1922, between the plaintiffs and the defendant. That the action is brought for installments due upon said lease which it is claimed the defendant has failed to pay. That the defendant is not indebted for said installments to said plaintiffs. That upon the 30th day of July, 1925, a corporation was formed under the laws of the state of Michigan, known as the Applebaum Realty Company, unto which corporation said defendant, Isaac Applebaum, conveyed certain property located within the state of Michigan, which property was of the value of $171,010. That the stock in said company, with the exception of one share, was issued to the children of said defendant, Isaac Applebaum, or for their benefit. That among the property so transferred was the leasehold interest for payments under which this suit is brought. That deponent personally advised plaintiffs of said assignment, and stated to plaintiffs that, if said assignment was not accepted by them, and the defendant, Isaac Applebaum, released from the obligations of said lease, said corporation would not accept the leasehold or pay rental thereunder. That deponent was advised by the plaintiff Henry C. Smith that he (the said plaintiff) would subsequently advise deponent whether the plaintiffs would agree to the assignment of said lease to said Applebaum Realty Company, and to the release of Isaac Applebaum from the obligations thereof. That this conversation took place just prior to the incorporation of said company, and that subsequently said company paid to plaintiffs, relying upon said proposal, the rental of said premises by the check of said Applebaum Realty Company as follows: July 21, 1925; October 19, 1925; January 25, 1926; April 27, 1926; August 17, 1926; December 15, 1926; March 11, 1927-all of which checks being for $2,250, and each of them bearing the indorsement of H. C....