Post v. Vetter, 2 E.D. Smith 248

By the Court. Woodruff, J.

I think the justice erred in refusing to allow the plaintiff to prove that the defendant had agreed with his tenant to repair the demised premises. Such an agreement was not necessarily connected with the agreement by which the premises were let to the plaintiff. It is entirely competent for landlord and tenant, during a tenancy created by writing, or even by deed under seal, to enter into an independent parol agreement in relation to repairing the premises, upon a sufficient consideration, and such an agreement may be proved by parol. Such an agreement does not necessarily alter the written instrument, and in the present case, if it be assumed that the letting was in writing, which was not proved, there was no evidence that the subject of repairs entered into the written lease in any form. There is nothing in the mere fact that the parties stand to each other in the relation of landlord and tenant under a written lease, which prevents their making a valid parol agreement with each other on any subject not embraced within the provisions of such lease, whether it be for repairing the premises or making an alteration therein, provided such new agreement be upon some new consideration sufficient to support it. From the aspect of the case, so far as it was developed by the pleadings and the evidence which was received, it appears to me very doubtful whether the plaintiff could have proved any such binding agreement, and it is unfortunate that the testimony was excluded, because, had the testimony been received, and the fact also elicited that the letting was under seal, it might then have been plain that the agreement, if any was made, had no consideration to support it, or for other reasons was of no binding effect; but there seems, in the present aspect of the case, no alternative but to reverse the judgment.

I do not think there was any error in holding that the landlord was not bound to keep the premises in tenantable condition, unless he had so expressly agreed. There is no such implied covenant or agreement on his part. If the agreement is silent respecting the matter, the tenant runs the hazard of the premises being or becoming untenantable. The case cited by the appellant’s counsel (Cleves v. Willoughby, 7 Hill, 83) shows this, and I apprehend it is perfectly well settled in this state.

That case also shows that if the letting was in writing a parol promise, by the landlord, to repair, made at the same time, could not be received in evidence.

Nor do I think that the plaintiff showed anything amounting to an eviction. * * *

But upon the ground first named the judgment must be reversed.

Judgment reversed.

Case Details

Case Name: Post v. Vetter

Court Name: New York Court of Common Pleas

Date Published: Dec 15, 1853

Citation: 2 E.D. Smith 248