Brill v. Friedhoff

Headnote

Guaranty of lease — modification of lease by waiver of provision for payment of taxes by lessee.

Brill v. Friedhoff, 184 App. Div. 673 , affirmed.

Appeal from, a judgment entered November 22, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury and directing judgment in favor of plaintiffs. The action was to recover upon a written guaranty of a lease, by the provisions of which the lessee was to pay, in addition to the rent reserved, all taxes and assessments. The guarantor died and thereafter by various mesne conveyances the lease came into the possession of Maria R. Friedhoff, one of the executors of the guarantor. Application having been made to the lessors for a reduction of the rent, the lessors agreed to waive the payment of the land taxes, and thereupon an agreement was entered

into with Maria R. Friedhoff, with the written consent of the defendants as executors and trustees of the guarantor, waiving the payment of the land taxes by the tenant. Default having thereafter occurred in payment of the rent, this action was brought to recover on the contract of guaranty. The answer sets forth as a defense that before any part of the rent claimed in the complaint became due the lease and the premises described in the complaint were surrendered and the plaintiffs accepted such surrender and took possession of the premises; and as a further defense that the plaintiffs accepted Maria R. Friedhoff as their sole tenant and agreed to look to her for the rent, and released Henry C. Meyer from all liability under the lease; that the executors and trustees under the will of John P. Friedhoff did not have any power to agree to pay the rent or to undertake the performance or to guarantee the performance -of the lease by Maria R. Friedhoff;' and that the plaintiffs modified the lease and the obligations of the parties thereunder without the consent of Henry C. Meyer and without the consent of John P. Friedhoff or any one else authorized to give consent. The Appellate Division held that the evidence did not sustain defendants’ contention of a new lease and surrender of the old but that it was manifest that a mere modification was intended.