Leeming v. Duryea, 49 Misc. 240

Leeming v. Duryea

49 Misc. 240 | N.Y. App. Term. | 1906

Scott, J.

The action is for an installment of rent due upon the lease, for six months, of a country place on Long Island. The making and acceptance and the nonpayment-of the rent are admitted. The defendant alleges, both by way of defense and counterclaim, that the plaintiff agreed to supply and renew various articles of furniture in the house and stable and otherwise put the premises in such order, repair and condition as is and was known to the plaintiff to he usual and customary in renting summer places, and agreed to have the same ready for occupation by defendant by Hay 15, 1902, and that plaintiff failed to perform this agreement. The plaintiff denies any agreement except such as is contained in the lease. In considering the *242■rulings of the trial justice, it is well to consider the form •of defendant’s pleading. The complaint alleges that, on •the 15th day of April, 1902, the plaintiff and defendant entered into a written lease, of which a copy is attached to ■the complaint. . The answer, both in the defense and counter- ■ claim, alleges that, on the 15th day of April, 1902, the defendant entered into certain “ agreements ” with the plaintiff. Then follows a condensation of the terms of the written lease, or some of them, and the answer then goes on to •state, in the same sentence and as part of the same “ agreements,” the undertakings on the part of the plaintiff which have already been referred to. Although the defendant now claims to have pleaded, and to rely upon, an independent -collateral agreement to make repairs and do the other things (-numerated, his pleading scarcely justifies such a contention. Its plain construction appears that the agreement to lease the house and the agreement to make the repairs, ■etc., were all parts of one complete agreement made on April fifteenth. If this be the true construction of the ■pleading, the case falls directly within Van Derheof v. Hartmann (63 App. Div. 419), which is fatal to the appellant’s 'contention. There certainly is no allegation that the alleged - ¡agreement of plaintiff to make repairs, etc., preceded the ¡agreement of lease and was made as an inducement to and upon consideration of the making of the lease. The very most under any circumstances that can be said to be pleaded, •or that was attempted to be shown, was that the agreement to lease and that to make repairs, etc., .were, in reality, parts of one complete .agreement, made at the same time •■and resting upon the same consideration, of which only the ¡¡part relating to the leasing was reduced to writing, the remainder being left to rest in parol. Undoubtedly, in certain cases, oral agreements collateral to written ones may be -proved if properly pleaded. To such cases, however, two miles are inflexibly applied. First, the writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement ■and designed to express the whole arrangement between the parties, for, in such a case, it is conclusively presumed to *243embrace the entire contract. Secondly, the parol evidence must be consistent with, and not contradictory of, the written instrument. Thomas v. Scutt, 127 N. Y. 133. In the present case, the lease is a complete document, containing mutual covenants and executed with due formality under seal. There is nothing in it to suggest that it was incomplete or that it did not embrace the whole agreement between the parties. Two of defendant’s chief complaints are that plaintiff did not sufficiently furnish the house and did not cut the grass and trim the hedges. The written instrument expressly leases the premises “ with the furniture now contained in the house;” and, in another clause, the defendant agrees to cut the grass on the lawn at least once a week and to keep the hedges trimmed. The testimony shows that all the promises said to have been made by plaintiff were made, if at all, either at the execution of the lease, or subsequent thereto, and, for the most part, after the commencement of the term. In so far as they were made at the time of signing the lease, they cannot, as already shown, be considered. In so far as made afterward, they are without consideration. And, finally, even if the plaintiff had validly made such an independent agreement as the defendant alleges, it would have constituted no ground for repudiating the lease, but, at most, would have afforded a basis for damage; and no damage was proven or attempted to be proven. It is not necessary to consider the authority of one executor to make the lease, because the lease is not made by plaintiff as executor, and the answer does not deny but, on the contrary, affirms the lease.

The judgment was right and must be affirmed, with costs.

Blanchabd and Dowling, JJ., concur.

Judgment affirmed, with costs.