29 N.Y.S. 667 | N.Y. Sup. Ct. | 1894
The purpose of the action was to recover a portion alleged to be unpaid of the installment due April 1, 1893, from the defendant to the plaintiffs, upon a lease of store premises in the city of Rochester. The defendant alleged, by way of counterclaim, the payment by him for certain repairs upon the store, pursuant to agreement with the plaintiffs that the payment so made should be allowed to him, and applied upon the rent reserved by the lease. The plaintiffs controvert the charge of liability to him for such payment. The lease is in writing, sealed with the seals of the parties, and bears date November 12, 1889. By it the premises are leased to the defendant for the term of five years from the 1st day of January, 1890, at the annual rent of §12,000 for two years, and $13,000 for" the remaining three years of the term. The testimony of the defendant is to the effect that, at the time the lease was made, it was orally agreed between him and the agent of the plaintiffs that a new front should be put in the store, and
It appears that, about the time the work of putting in the front of the store was commenced, the plaintiffs’ agent forbade the performance of it, of which the defendant and the contractor were advised; and about the same time, in answer to the defendant’s letter on the subject, one of the plaintiffs wrote him, denying knowledge of any agreement to make the repairs, and refusing to consent that they be made. If there had been any promise or acquiescence on the part of the plaintiffs, by their agent, it was executory, and they could not be required to. proceed with the work; and it is at least very questionable whether there had been such agreement made by them, or in their behalf, as would enable the defendant to cause the repairs to be made, and charge them with the expense. It seems that the defendant and his brother were then occupying the store, and doing business there, in their firm name of J. Pahy & Go.; and, being so advised of the refusal of the plaintiffs to make the repairs, the defendant subscribed the firm name of J. Pahy & Co. to an agreement in writing, which was delivered to the plaintiffs, expressing an undertaking as follows: “For and in consideration of one dollar received by the undersigned of Caroline L. Ely and