94 N.Y.S. 154 | N.Y. App. Div. | 1905
On the 4th of September, 1901, the defendant leased to the plaintiff by an agreement in writing certain premises in the city of New York for the term of one year commencing on the 1st of October, 1901, with the privilege of renewal, at an annual rental of $1,800, payable quarterly in advance, which lease contained a provision that the plaintiff in addition to paying the rent at the time and in the manner specified, would pay the Croton water rate and “ keep the plumbing work, pipes, glass and the premises generally in repair,” and surrender the same at the expiration of the term in as good state and condition as reasonable use and wear thereof would permit.
The plaintiff claimed that prior to the execution of the lease and
I am of the opinion that the determination of the Appellate Term ■and the judgment of the City Court should be reversed. The admission of the testimony which tended to establish the alleged ■oral agreement contradicted the terms of the written lease and violated the well-settled rule that all oral negotiations taking place prior to or at the time a written agreement is executed are merged in it. ■(Wilson v. Deen, 74 N. Y. 531; Eighmie v. Taylor, 98 id. 288.) The written lease, it will be observed, appears upon its face to contain the entire agreement of the parties. Nothing seems to have been omitted. It is complete in every respect and covers the entire subject-matter. The obligation of the respective parties and the extent to which each is bound is there set forth. A legal presumption prevails, therefore, which cannot be overcome by parol evidence, that the lease contains the whole agreement between the parties. (Van Derhoef v. Hartmann, 63 App. Div. 419 ; Smith v. Smull, 69 id. 452.) Proof of a parol collateral agreement cannot be received if it tends to contradict or vary the written agreement. It is only admissible when the written agreement is not complete upon its face and such parol proof does not vary or contradict its
Here the oral agreement was not only a part of the hiring, as-appears from the plaintiff’s own testimony, but is in conflict with the provisions of the lease. It must be held, therefore, that the oral agreement, if made, was merged in the written agreement, and that being upon, its face complete and covering the whole subject-matter, parol testimony is inadmissible to vary or contradict its terms.
It follows, therefore, that the determination of the Appellate Term and the judgment of the City Court must be reversed and a, new trial ordered, with costs to the appellant to abide the event.
O’Brien, Ingraham and Hatch, JJ., concurred.
Determination of Appellate Term and judgment of City Court reversed and new trial ordered, costs to appellant to abide event.