| New York Court of Common Pleas | Dec 1, 1890
The action was brought to recover the sum of $208.33 for one month’s rent of the house and premises 3 East Twenty-Seventh street under a lease for a term of two years commencing May 1,1890, made by Mrs. Pfaff to the defendant at an annual rental of $2,500, payable monthly in advance. This action is for the first month’s rent, and the cause of action was assigned to the plaintiff June 1, 1890. The defendant interposed a counterclaim for damages for the breach of an agreement made by the landlord with him before or at the time of taking the lease, by which the lessor agreed as a ■condition upon which the defendant hired the premises that they should be put in thorough repair before the commencement of the term. The justice found that such an agreement had been entered into by the landlord; that the premises were not put in thorough repair by the time agreed upon; and that the damages of the defendant, by reason of such breach, equaled or exceeded the rent sued for; and gave judgment accordingly for the defendant.
The appellant urges as a ground of reversal that the evidence of a verbal agreement to put the premises in repair was not admissible, it being an attempt to modify or vary the written lease. In this he is mistaken. The Agreement was collateral to the written lease, and may be proved and enforced although not reduced to writing nor incorporated in the lease. Chapin v. Dobson, 78 N. Y. 75. It is only such matters as concern a subject embraced in and covered by the terms of the lease that must be incorporated in it, and that are deemed to be waived if not so incorporated, although they may have been the subject of prior negotiation and agreement between the contracting parties. Had this been an agreement on the part of the lessor to make repairs, or to keep the premises in repair during the term, it would have fallen within this rule; but an independent agreement to put the premises in repair before the term and made as a condition of, or consideration for, the taking of the lease, stands upon a different footing. Similar agreements have been held to be collateral, and are cited by the court in the ease referred to. In Mann v. Nunn, 43 Law J. C. P. 241, where a lessor promised that, if the proposed lessee would take a lease of a house, he would put the house in a state fit for occupation, the promise was held to be collateral to the written lease, and provable by paroi evidence, for the purpose of recovering damages for a ■breach of it. There was substantially no dispute as to the alleged agreement