Sire v. Rumbold — 39 N.Y. St. Rep. 85

Majority

p. 85

Henry B. Sire, App’lt, v. Gorge W. Rumbold et al., Resp’ts.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

1. Evidence—Written agreement—Contemporaneous parol agreement.

Plaintiff leased certain premises to defendant and reserved to himself in the lease the right of entry for the purpose of certain building and repairing which he stated in the lease it was his intention to do, the lessees to have a deduction during the progress of such building of twenty-five dollars per month, and by a parol contemporaneous agreement he promised to make certain other changes, during which he would accept a lower rent than that named in the lease. Held, that the last mentioned agreement, though resting wholly in parol, was contemporaneous with, and collateral to, the written lease, and its consideration being the defendants' assumption of the lease, the agreement was operative and evidence thereof was properly received.

3. Trial—Motion eor judgment without request to go to jury.

Where both sides rest and plaintiff’s counsel moves for judgment on the pleadings and proofs it is equivalent to a motion to direct a verdict for plaintiff, and a concession that there are no facts in dispute, and it is not obligatory upon the court to submit the fact to the jury in the absence of a specific request to that effect.

Appeal from a judgment and order of the general term of the city court affirming a judgment of that court in favor of defendants, and an order denying plaintiff’s motion for a new trial, in an action to recover a balance'- of rent alleged to be due under a lease in writing, the defense being that in consideration of the execution of the lease by the defendants the plaintiff, by a cotemporaneous verbal understanding, had agreed to accept a lesser rent than that reserved until the completion of certain alterations in the demised premises, which plaintiff had agreed to make.

Albert L. Sire, for app’lt; Abram Kling, for resp’ts.

—From the record before us we can perceive no valid ground for disturbing the judgment of order appealed from. The agreement set up in the answer and which defendants estab

p. 86

lished by sufficient evidence upon the trial is not in conflict with the provisions of the lease. The seventeenth paragraph of the lease recites that it is the intention of the lessor to build upon the demised and adjoining premises and he reserves to himself the right of entry for the purposes of such building and repairing. It also provides that during the progress of such building the lessees shall have a deduction from the rent reserved of twenty-five dollars per month. The agreement established, and upon which defendants relied on the trial, was that the plaintiff, in consideration of defendant’s execution of the lease in evidence, promised to change the attic floor of the demised premises, then consisting of one large room, into five separate rooms, and that until such change had been effected defendants were to pay $100 per month rent instead of $125 as provided for in the lease.

This last mentioned agreement though resting wholly in parol was cotemporaneous with and collateral to the written lease, the consideration therefor being the defendant’s assumption of the covenants and conditions on his part to be performed and contained in the written lease. Such an agreement is operative, and evidence thereof was properly received. Clenighan v. McFarland, Common Pleas, General Term, 11 N. Y. Supp., 719 ; 34 N. Y. State Rep., 624 ; Chapin v. Dobson, 78 N. Y., 74 ; Lanphire v. Slaughter, 61 How. Pr., 36 . This disposes of all of plaintiff's exceptions to the admission of evidence for the defendants tending to prove the parol agreement.

When both sides rested plaintiff’s counsel moved the court for judgment for plaintiff upon the pleadings and proofs. This was equivalent to a motion to direct a verdict for plaintiff, and implied a concession that there were no facts in dispute. It was not thereafter obligatory upon the court to submit the facts to the jury in the absence of a specific request of the plaintiff to that effect. Ho such request was made, and an exception only to the court’s direction of a verdict for defendants is unavailing, as plaintiff will not after moving for a direction in his favor, and without requesting to go to the jury after the motion is denied, be permitted to urge on appeal that there were questions of fact, which ought properly to have been submitted to the jury. Dillon v. Cockcroft, 90 N. Y., 649 ; Ormes v. Dauchy, 82 id., 443 ; Yale v. Dart, 13 N. Y. Supp., 277 ; 36 N. Y. State Rep., 40.

The remaining exceptions referred to in appellant’s brief and not hereinbefore noticed refer to the admission and exclusion of evidence, but none of them upon examination appear to be of sufficient force to call for reversal or merit discussion.

The judgment and order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.