Eisert v. Adelson — 136 A.D. 741

Majority

p. 741

Laura E. Eisert, Appellant, v. Joseph Adelson, Respondent.

Second Department,

March 4, 1910.

Headnote

Evidence — parol evidence varying written instrument — landlord and tenant — covenant to repair — consideration.

Where a lease in writing is complete and requires the tenant to surrender the premises in good condition at the end of the term, parol evidence of a prior or contemporaneous agreement by the landlord to repair is inadmissible as it varies the terms of the instrument.

Any agreement of the landlord to repair made after' the execution of such lease is without consideration.

p. 742

Appeal by the plaintiff, Laura E. Eisert,. from a final order of the Municipal Court of the city of Mew York, borough of Queens^ rendered on the 22d day of J uly, 1909.

Samuel I Goldberg, for the appellant.

Mawriae Hagler, for the respondent.

The proceeding was instituted to dispossess a tenant for failure to pay an installment of rent of $200, due July 1, 1909.' The tenant answered counterclaiming for abatement of the rent, on the ground that he was precluded from taking possession of the premises until May thirtieth, whereas .he was entitled to possession on May fifteenth. The alleged reason for delay in taking, possession was the failure of the landlord to make repairs on the premises. The tenant also charges that the landlord agreed to furnish dishes, and failed in this, to the tenant’s damage in the sum of eight dollars. The lease' is in writing and is complete. It makes no provision for repairs, but does provide that the tenant shall surrender the premises “in as good state and condition as they were in at the commencement of the term, reasonable use and wear thereof and damages by the elements excepted.” Therefore, any evidence on the part of the tenant of an agreement for repairs by the landlord made before or contemporaneously with the written lease is inadmissible. (Daly v. Piza, 105 App. Div. 496 ; Van Derhoef v. Hartmann, 63 id. 419; Wilson v. Deen, 74 N. Y. 531 .) Any agreement made after the lease was signed to the effect now claimed is without consideration. (Leeming v. Duryea, 49 Misc. Rep. 240 .) The plaintiff testified that after the lease was signed he did agree to make some repairs and did make them. He stated that the tenant informed him on the fifteenth day of May that he did not intend moving in before Decoration Day and asked that some of the rooms be painted, and that the defendant told him that he would paint some.of the rooms for him. There is no claim that this w¡as not done, but rather that it delayed the tenant’s possession. ■ On the return day the tenant paid into court the sum of seventy-nine dollars and fifty cents. At the conclusion of the trial the court found that eighty-seven dollars and fifty cents was dué after allowing an abate

p. 743

ment of the rent on account of the delay in getting possession. The tenant paid the eight dollars into court.

The final order should be reversed and a new trial ordered, costs to abide the event.

Hirschberg, P. J.,Woodward, Jenks and Burr, JJ., concurred.

■ Final order of the Municipal Court reversed and a new trial ordered, costs to abide the event.

Cases cited

Wilson v. Deen 74 N. Y. 531 N.Y. 1878-11-12 p. 742