Moritz v. Koenig — 48 N.Y. St. Rep. 693

Majority

p. 693

Charles Moritz, Resp’t, v. John H. Koenig, App’lt.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

Landlord and tenant—Modification of lease under seal by paroi EXECUTORY CONTRACT.

A lease under seal cannot be modified before breach by a paroi executory contract.

Appeal from order of a district court.

Proceeding for the summary removal of a tenant for non-payment of rent. The question in controversy was, whether a tender by the tenant was of all the rent due.

Langbein Bros. & Langbein, for app’lt; F. W. Fuhrman, for resp’t.

We have accorded to the brief of the learned counsel for the appellant the consideration due to so elaborate an

p. 694

effort, and yet we are unable to perceive any error in the disposition of the case by the court below.

The only plausible proposition advanced by appellant is, that by compromise between the parties the rent was reduced to the sum of which he made tender. But, even assuming that a ten years lease under seal may be modified bv an executory contract resting in paroi, still we fail to find in the evidence sufficient proof of any such agreement. Undoubtedly there was a parley between the parties about a settlement of the complicated difficulties in which they were involved; but for aught that appears in the record, the negotiation never issued in a definite and consummate agreement. Were there such an agreement, however, it would be of no effect. Coe v. Hobby, 72 N. Y., 141 .

Counsel for the appellant indulges in a strain of reflection upon .the conduct of the trial justice, for which, on examination of the return, we observe no justification.

His rulings were generally in favor of the appellant; and he appears throughout the trial to have borne himself with dignity and with absolute impartiality between the litigants. But were his conduct open to animadversion, the’ criticism of counsel should have been couched in terms less replete with insinuation of culpable misbehavior.'

Error, of course, may be imputed to a judge, but not an intentional perversion of justice, except in a proceeding to punish him for official misconduct.'

We are of opinion that the justice rightly determined the case, and'that the reasons upon which he bases his decision satisfactorily sustain it.

Order affirmed on the opinion below, with costs.

Bischoff, J., concurs.