Majority
p. 358Tryon against Mooney. NEW YORK, Oct. 1812.
Headnote
A. leased a farm to B. & in an actionby 33. against A. he pleaded by way of set-on, a demand for pasturage founded on a parol agreement, made at the timeof the lease, that ti. was not to use the pasture land, without allowing A. for it. It was held that this parol agreement was ■without eon-void. ’IN ERROR, on certiorari, from a justice’s court. Mooney sued Tryon, before the justice, on a due bill, given for wheat, for twenty-three dollars. The defendant below offered to prove, by way of set-off, that he had pastured horses for the plaintiff to the value of 15 dollars; that after the defendant had, by deed, leased his farm to the plaintiff it was agreed between them, that the plaintiff Was not to have the pasture of the farm, except for the use of his team, when at work on the farm, and that if the plaintiff used the pasture, he was to allow the defendant for it. This evidence was objected to by the plaintiff below, and rejected by the justice, who gave judgment for the plaintiff, for the twenty-three dollars.
The parol agreement set up, by way of set-off, was without consideration, and, consequently, null and void. The interest in the farm, and the possession of it, and which included the right of pasture, was vested in the plaintiff by lease, under seal. An agreement that a party will not use his own pasture, in his own possession, without paying for it, requires a consideration as well as a promise in writing, to give it validity; and there does Hot appear to have been either. The evidence was, therefore, properly overruled.
Judgment affirmed.