181 Misc. 301 | N.Y. App. Term. | 1943
The record establishes that the landlord by signs on the premises advertised free bus service to prospective tenants of its apartment house, which was distant from subway lines. The agent testified that for about eight years all of the seventy-two tenants were furnished with bus service on tickets issued to each tenant by the landlord until April, 1943, when, because of a governmental order restricting the use of busses, this service was terminated.
It seems to us that the written leases, which made no reference to such service, did not express the entire agreement of the parties and that the complete agreement, insofar as the compensation to be paid the landlord for the occupation of the premises, consists of two parts — (1) the agreement of the tenant to pay the rent as stipulated in the lease, (2) the agreement of the landlord, in accordance with the offer made by him as evidenced by the sign attached to the building, to furnish free bus service.
There being a partial failure of consideration, the landlord, though not liable in damages for the breach, was not entitled to receive so much of the rent as represented the agreed-upon value of the discontinued bus service.
Final orders and judgments so far as appealed from affirmed, with twenty-five dollars costs as of one appeal.
McLaughlin and Heoht, JJ., concur; Schmuck, J-., dissents.
