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Eskin v. Freedman

OCTOBER 28, 1964.

BLANCHE P. ESKIN AND CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE UNDER TRUST NO. 35942, THIRD PARTY PLAINTIFFS, THIRD PARTY COUNTER DEFENDANTS, APPELLEES,

v.

OSCAR AND BERTHA FREEDMAN, THIRD PARTY DEFENDANTS, THIRD PARTY COUNTER PLAINTIFFS, APPELLANTS.



Appeal from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

In August of 1961 the City of Chicago filed a complaint for mandatory injunction seeking to compel the correction of certain building ordinance violations alleged to exist with respect to the premises commonly known as 848-854 West Waveland Avenue, Chicago. The suit named as parties defendant the Chicago Title and Trust Company, as trustee under a certain trust, and Blanche P. Eskin, who apparently was the beneficiary under the said trust. It was stated in the third-party defendants' brief that Blanche P. Eskin and Chicago Title and Trust Company, as trustee, filed an answer to the City's complaint and filed a third-party complaint against Oscar and Bertha Freedman, lessees of the premises, alleging that the Freedmans had breached a covenant of the lease whereby they as lessees agreed to care for and maintain the demised premises in good condition. (None of this appears in the record.)

The Freedmans, hereafter referred to as counter-plaintiffs, thereupon filed a counterclaim for breach of an implied warranty that the premises were fit for the specific type of use and occupancy for which they were demised.

The Chicago Title and Trust Company and Blanche P. Eskin will hereafter be referred to as the counter-defendants.

On October 16, 1961, an order was entered by the court dismissing the counterclaim. From that order the counterplaintiffs appeal.

In limine it might be well to quote from Ready v. Ready, 33 Ill. App.2d 145, 178 N.E.2d 650, where at page 153 we said:

"The practice of law in the final analysis is an art and it would seem that the work of both the trial and reviewing courts would be greatly eased if there was a greater adherence to a reasonable observance of the principles governing proper pleading. . . ."

The court also says that:

". . . it does not seem too much to require the party to indicate to the court the particular section of the statute upon which he relies. . . ."

In the instant case, the counterclaim was not a masterpiece of pleading. It alleged in substance that the parties entered into a lease of the premises for a term of five years commencing on August 1, 1955 and ending July 31, 1961. The premises were to be used and occupied by the counterplaintiffs, "for The Conduct of a First Class Rooming House Business and for no other purpose or purposes whatsoever." It also alleged:

"That at the time the said lease was executed, all ordinances, rules and regulations of the City of Chicago, pertaining to the operation of said rooming house, were fully complied with, and that no building, housing or zoning violations existed at the time said lease was executed or was to commence."

It is further alleged that the lessors (the counter-defendants) at the time the lease was entered into were not lawfully entitled to lease the said premises as a rooming house, "this being more specifically set forth in a complaint for Injunction and for the relief filed by the City of Chicago against the counter defendants in this entitled cause . . ." (The complaint of the City of Chicago appears nowhere in the record.)

The counterclaim alleges that the counter-defendants admitted the supposed allegations made by the City inasmuch as on August 23, 1956, they consented to the entry of a mandatory injunction against them in favor of the City of Chicago "requiring them to deconvert from 49 units to 12 dwelling units, which was the original manner in which said building was constructed."

The counterclaim further alleges that from April 10, 1957, the counterplaintiff has expended sums of money to correct violations and make repairs ordered by the City of Chicago; that certain rentals were lost because the City of Chicago prohibited the use of certain portions of the property, and the amounts ...


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