71 N.Y.S. 552 | N.Y. App. Div. | 1901
The defendant hired from the plaintiff the premises No. 298 Clermont avenue, Brooklyn, for the period of one year, from August 15, 19G0, under a written sealed lease complete upon its face, and containing no covenant to repair. The rent was payable, on the first of each month. He defaulted in the rent which became due . November first, and on the trial of the action brought to recover the amount a verdict was directed in plaintiff’s favor.
The defendant sought to show upon the trial that prior to the execution of the lease, and as an inducement and consideration for it, the plaintiff agreed to make certain repairs to the premises, to be completed before the commencement of the term, all which evidence was excluded by the court. There is no doubt that' such evidence would be competent for the purpose of showing an independent con
The answer alleges “ that at the time of malcing the agreement of letting and hvrimg mentioned in said complaint a further agreement was also made between plaintiff and defendant-, as part and parcel of said agreement of lettimg and hiring, whereby plaintiff promised and agreed forthwith to make necessary repairs of various kinds to the demised premises and put the same in good sanitary and tenantable condition as a residence for defendant and Ms family.” This, instead of setting up the making of an independent contract collateral to the letting and hiring and covering repairs to be completed before the commencement of the term, distinctly asserts that the oral agreement for necessary repairs to be forthwith made was a part and parcel of the contract of lease and was made at the same time. ■ The case, therefore, presented by the pleading is that of a single, entire agreement, partly written and partly oral. In Thomas v. Scutt (127 N. Y. 133) the court said (p. 138): “ Two things, however, are essential to bring a case within this class : 1. 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 embrace the entire contract. 2. The parol evidence must be consistent with and not contradictory of the written instrument. * * * The principle upon
The case of Blewitt v. Boorum (142 N. Y. 357), cited by the appellant, has no application to the case presented by the answer. It relates to the execution of a contract upon condition, and which, by agreement of the parties, is not to operate at all until the performance of some prescribed act. The condition may be shown by oral evidence where the contract itself does not require a seal for its validity.
The evidence of surrender was properly 'excluded as relating to a time subsequent to the liability sued upon, and as not embraced within the answer.
The judgment should be affirmed.
All concurred.
Judgment of the Municipal Court affirmed, with costs.