Natelsohn v. Reich

The plaintiff is the lessor and the defendants are lessees of premises Ho. 5 Allen street, Hew York city, under a lease dated June 14, 1901. The term of the lease is five years. The defendants entered into possession under the lease, and, on the 25th of June, 1902, the rent reserved in the lease was reduced as shown in the following writing signed by the parties to the lease: “ It is hereby agreed by and between the parties of the within agreement that this lease shall be in force and effect for the remainder of the term with all its conditions, but with one exception, and that is, instead of the payment of rent of $3,300 it shall be reduced to $3,000, payable in equal monthly payments of $250, to commence on July 1, 1902, and to continue for the *586balance of the period of the within lease. Dated blew York, June 25, 1902.”

The defendants paid and the plaintiff accepted the reduced rental up to January 1, 1906. On January 1, 1906, the plaintiff refused to accept the reduced rental and demanded rental at the rate of $275 a month as reserved in the lease. The defendants refused to pay $275 and the plaintiff brought this suit to recover $275 as the rent due January 1, 1906, under the terms of the lease. The plaintiff claims that his agreement as shown by the writing of June 25, 1902, was without consideration and that, therefore, he is at liberty at any time to cancel it so far as the unexecuted part of it is concerned. The defendants claim that there was a consideration for the agreement, and that it was binding upon / the plaintiff. At the trial counsel on both sides, at the close of the case, agreed that “ as to the evidence there' was no dispute,” and thereupon waived the jury trial and left the case to the judge, who rendered judgment in favor of the defendants and against the plaintiff,’ awarding $20 extra costs and $4.50 jury fee. From this judgment the plaintiff appeals. The plaintiff also appeals from an order denying ■ his motion to modify the judgment by striking out the $4.50 allowed as jury fee, on the ground that a jury trial was waived. I think the defendants showed a good consideration for the written agreement of June 25, 1902. They testified that, just prior to the execution of the writing of June 25, 1902, they had a conversation with the plaintiff in which he agreed to make the reduction of rent, provided the defendants would make certain additions and alterations to the building. This arrangement was consummated, the writing was signed, and the additions to the premises were made at the expense of the defendants. These alterations consisted of new floors, concrete ceiling, new shelves and twelve closets, removing wooden walls and putting in plastered walls, etc. It is not denied that these alterations were made, nor is it denied that this conversation took place; but the plaintiff seems to have objected to the admission in evidence of the .conversation and to have noted an exception. I think, however, the conversation was properly admitted to show a con*587sideraticm for the agreement of June 22, 1902. Mo consideration was referred to in that writing, and it refers only to plaintiff’s obligation. On its face the writing appears not to contain the whole agreement between the parties; it is obviously an incomplete instrument. There must have been some good reason for modifying the lease by a reduction of the rent, some reciprocal obligation of the defendants. Under these circumstances it was proper to allow the defendants to show the whole agreement between the parties, even by oral testimony. Parks v. Clark, 2 N. Y. St. Repr. 329; Seguine v. Spaeth, 14 Misc. Rep. 349. But the plaintiff claims that the work done by the defendants was required of them under the covenant in the lease as to repairs and that, therefore, they agreed to do no more than what the lease itself required of them. Under the lease the tenants were to make all necessary repairs required to be done to keep the premises in good and tenantable condition. The work done by the defendants clearly cannot be classed as ordinary or necessary repairs as contemplated under the lease.

I think the judgment and order should be affirmed, with costs to the respondents.

Gildebsleeve and Clinch, JJ., concur.

Judgment and order affirmed, with costs to respondents.