Lynch v. Hunneke

saloon, and would like to cut a door from said hall into the lower room; that the plaintiffs then and there stated to the defendant that they would not hire the premises or execute said lease if such door was to be cut through, or if the lower room was to be rented for a saloon; that the defendant then promised he would not do so if the plaintiffs executed the lease, and thereupon the said lease was executed by both parties; that the demised premises have 44 lodging rooms, and they are rented by the plaintiffs to respectable people only, for lodging purposes, and no beer or intoxicating drinks are sold on said premises, of which fact the defendant had due notice; that about July last the said defendant rented said lower room to one S. Buttner, who went into possession, and about October 1st commenced selling intoxicating drinks; that on the 15th day of October, 1891, said Buttner, or some one in his employ, without the consent of the plaintiffs, but with the permission of the defendant, nut an opening for a door from said hall into the lower floor or saloon, and had a door placed therein; that the plaintiffs immediately notified said defendant of the said door, and objected to the same, and stated to him, in substance, that he would be held responsible if he did not have said door closed, and keep persons frequenting said saloon from entering the said hall; that ever since October 17th last the said saloon has been a disorderly house; that Buttner was succeeded by another tenant, and that since that time the said room was kept partly as a resort for lewd women and partly as a pool room; that lewd women and disorderly men have been in the constant habit of entering the said hall, and passing through the said door into the said lower room, and at times have been in the habit of making disorderly and. loud noises, and frequently as late as 4 o’clock in the morning; that the plaintiffs protested against these occurrences, but without success; that it is necessary for the business of the plaintiffs that the front door leading from the street into said hall should be unlocked during the day, and most of the night, to allow their guests to come and go as their business might require; that by reason of the occurrences complained of, and the passage of the persons complained of through said hall, many of the plaintiff’s guests have been compelled to abandon the demised premises. Upon these and other allegations not necessary to be specifically mentioned, including allegations of damages sustained, and that plaintiffs have no adequate remedy at law, the plaintiffs prayed that the defendant, his agents and tenants, be restrained from entering the hall leading from the front door to the upper stories occupied by the plaintiffs; that the said defendant be compelled to close up the door leading from said hall into the saloon or lower room of- the building; that the plaintiffs recover their damages already sustained, etc. The defendant, by his answer, admitted the execution and delivery of the lease as alleged by the plaintiffs, but in all other respects denied the allegations of the complaint.

Upon the trial of these issues the learned judge, after hearing part of the testimony offered by the plaintiffs, refused to hear the remainder, and dismissed the complaint, upon the ground that the lease did not give the exclusive use of the hallway to the plaintiffs, and did not prohibit the cutting of a door from the hall into the saloon. This ruling seems to have proceeded upon the theory that the lease constituted the whole contract between the parties, and that, inasmuch as the lease did not in terms grant to the plaintiffs the exclusive use and control of the hallway, evidence of a prior or contemporaneous oral agreement concerning said hallway was inadmissible, and, so far as it had been permitted to be given, had to be disregarded. In this 1 think the learned trial judge erred. The general rule, which excludes ■conversations, negotiations, and paroi agreements, prior to the execution of a written agreement relating to and springing out of such conversations, negotiations, etc., does not apply (1) when the original contract, although verbal, yet was entire, and only a part of it was reduced to writing, in which case the part not so reduced can be proved by paroi; and (2) when the

consideration, or a consideration further than that expressed in the writing, does not appear in the writing, in which case the consideration, or the further consideration, may be proved by paroi. Hope v. Smith, 35 N. Y. Super. Ct. 458 , affirmed, 58 N. Y. 380 . So paroi evidence is always admissible as to the meaning which the parties themselves attached to a particular word or phrase in the contract. • Such evidence does not contradict or vary the terms of the written contract, but is explanatory thereof. In the case at bar the lease was for the six lofts, “ together with the appurtenances.” These words gave to the plaintiffs whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneficial use and enjoyment thereof, and the plaintiffs took any easement or servitude used or enjoyed with the demised premises. Doyle v. Lord, 64 N. Y. 432 . 5 As the appurtenances were not specified, paroi evidence was admissible to show their character and extent, and, that being so, paroi evidence was admissible to show that the parties, preparatory to the execution of the lease, met and discussed such character and extent, and agreed that the appurtenances should include all that they appeared to include, and that the defendant would not make a change in such appearances in derogation of. his grant, and that, in strict reliance upon the promise of the defendant not to change the appurtenances as they then existed and were understood, the plaintiffs executed the lease. Parol evidence to this effect was partly given and partly offered to be given, but rejected. Moreover, the plaintiffs did show that before the lease was executed the parties did meet and have a discussion; that in the course of it the defendant proposed that he should be allowed in express terms to be inserted in the lease to reserve the right of cutting a door from the hall into the saloon, and that the plaintiffs so strenuously objected to it, giving reasons for their objections, that the defendant expressly waived the point in plaintiffs’ favor. Under all the circumstances, as they appear at present, it must be assumed that the plaintiffs, if they had been permitted to give all the evidence which was competent under the issues within the rules above stated, would have made out a prima facie case entitling them, in the absence of evidence to the contrary, to some relief against the injurious use of the hall leading to their premises, or of the side door cut from said hall into the adjoining saloon. For the reasons stated the dismissal of the complaint constituted error. The judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.