19 N.Y.S. 276 | N.Y. Sup. Ct. | 1892
This action was brought by the plaintiff as lessee against the defendant, its landlord, to restrain him from proceeding to dispossess it for the nonpayment of rent. The lease was made under seal on the 21st day of March, 1891, and was to run for the period of 10 years from the 1st of October, 1891. The rental during the first 5 years was to be at the rate of $6,000 per month, and during the remaining 5 years at the rate of $7,000' per month. In addition to the rent the tenant agreed to pay the annual Croton water rates on or before August 1st of each year, and also to keep the premises, machinery, etc., in repair and running order at his own expense. The defendant never received the full rent reserved in his lease, baton October 10, 1891, took $4,000 for October, and. thereafter $3,000 for November, rent, and each month subsequently, including February, $3,500. By the terms of the lease, the premises were to be ready for occupation on October 1st. The plaintiff insists that this covenant was violated, in that a large number of the apartments, hallways, and rooms were not completed and ready, and that the steamfitting, electric light apparatus, etc., were unfinished.
The serious question presented, however, relates, not to the facts as concluded by the judge, but to the law as applicable thereto. This goes to the very foundation of the right of the plaintiff to maintain this action. The ground for the relief prayed for by plaintiff, as already stated, was the inability to avail itself of the agreement claimed to have been made, by which the rent was reduced, and which in summary proceedings would have been unavailing as a defense, for the reason that the original instrument of lease was under seal, and the effect would be to modify the same by a paroi agreement. It is insisted by appellant that the contract set forth' in the complaint, being an oral one, intended to.reduce the rent reserved in, and in that respect to modify, a lease for 10 years, which by statute must be in writing, and to which the parties had affixed their seals, is void at law,'and may be repudiated by either party, so far as the oral modification remains unexecuted. In support of this proposition, we are referred to the cases of Coe v. Hobby, 72 N. Y. 141; Smith v. Kerr, 108 N. Y. 31, 15 N. E. Rep. 70; McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. Rep. 458; and McCreery v. Day, 119 N. Y. 1, 23 N. E. Rep. 198. In Coe v. Hobby it was held that a contract or covenant under seal cannot be modified before breach by a paroi executory contract. In Smith v. Kerr it was held that a simple executory agreement, without consideration, to alter the terms of an existing unexnired lease, in which no breach had occurred, was void. In McKenzie v. Harrison, 120 N.Y. 263, 24 N.E. Rep. 458, the court said: “We shall not question the rule that a contract or covenant under seal cannot be modified by a paroi unexecuted contract.” “These cases, however, in no way destroy the force of the rule sustained by many cases, that, after the breach of a sealed agreement, it may be modified in any respect, or wholly rescinded, by an executed paroi agreement founded upon a sufficient consideration.” Dodge v. Crandall, 30 N. Y. 294, 307. A paroi modification of a sealed instrument, to be enforceable, must be an executed, as distinguished from an executory, contract, and it must be a valid, binding agreement, founded upon a sufficient consideration. Therefore, if the facts here had shown that the landlord had performed all the covenants on his part, and that thereafter the tenant, having entered into possession, had made an arrangement with the landlord for an abatement of the rent secured by a sealed instrument witli respect to any portion of the term, notwithstanding such an arrangement an action would be maintainable for the amount stipulated in the sealed lease. This was the question which the court of appeals disposed of in McKenzie v. Harrison, 120 N. Y. 260, 24 N. E. Rep. 458, where the landlords, after having reduced the rent and accepted payment of installments thereof in full “until times are better,” sued for the balance of the installment under the lease for which they had receipted in full, and a verdict was directed in their favor. The court therein said: “We shall not question the rule that a contractor covenant under seal cannot be modified by a paroi unexecuted contract. * * * Neither shall we question the views of the court below, to the effect that the alleged oral agreement was void so-far as it remained unexecuted. The lessors had the right to repudiate it at any time, and demand the full amount of rent provided for in the lease; but in so far as the oral agreement had been executed as to the payments which had fallen due, and had been paid and receipted in full, as per the oral agreement, we think the rule invoked has no application. ” The question here presented is different from that decided in McKenzie v. Harrison, supra, in that, if the facts stated by the plaintiff can be proven upon a trial,—that, having a valid claim for damages by reason of the breach of the covenant for occupation and enjoyment on and ■after October 1st, this claim was waived in consideration of the paroi agreement to take a less rent for the first year,—such ah agreement, executed on the part of the plaintiff, and partly performed by the defendant, by the allow
The only other question relates to the amount of the undertaking given by the plaintiff upon the injunction. The difference between the rent reserved in the lease and the amount payable under the agreement, as claimed by plaintiff, would on the 1st of October, 1892, should the defendant be successful, require the payment by plaintiff of the sum of $17,500. A bond, therefore, in the sum of $20,000, we think, was sufficient. Should the trial not be had within a time that shall fully protect the defendant, or should any facts arise, entitling the defendant to additional security, the opportunity is always present to obtain additional security upon application. In respect to the claim that, in addition to the rent reserved, security should also have been given for the Croton water which the plaintiff had agreed to pay, it is sufficient to say that it is entirely independent of the question involved here, as to the amount of rent, and this injunction in no way impairs the defendant’s right to insist upon, the performance of this condition in the lease, or any other conditions or obligations, on the part of the plaintiff; the injunction itself being directed
Upon an examination, therefore, of the record, showing the reasons for the making of the order appealed from, we think the learned judge was right in giving-the plaintiff an opportunity to have a trial where it could produce and examine its witnesses, and, if able, establish the good faith of its claim that the hotel was not ready for occupancy at the date agreed upon, which resulted in damages to it, and which, in consideration of a reduction of the rent for the first year, it waived. W e think the order appealed from should be affirmed, with $10 costs and disbursements. All concur.