Sherman v. Engel

1896), under a sealed lease for 1J months entered into on the 22d day of November, 1895, between the defendant, as tenant, •and one Boss, the owner of the premises, as landlord. The plaintiff is the successor in title of Boss, and his assignee of the lease; the transfer of ownership having taken place June 1, 1896. The -defendant removed from the premises in the month of Mgy, 1896, and claims, in defense to this action, that Boss accepted her surrender of the lease, and recognized one Neil as the succeeding tenant, accepting payment of rent from him as such tenant. From the evidence, although in conflict, the justice was not unauthorized to find the fact, as he did, favorably to this defense; and Ave may not properly disturb that finding, Avhich in turn necessarily led to the legal conclusion that the defendant should prevail upon the issue litigated. The defendant’s testimony showed that Boss consented to the affixing of the sign “ To Let ” upon the premises, .and named one Kenny as the agent to “ put the bill out.” Kenny testified that lie secured N eil as the tenant, and that Boss, in the course of an intervieiv with the Avitness, approved of the selection, received rent from Neil, and expressed his Avillingness to accept him as tenant for a year. This was denied by Boss, but, in the absence of extraneous circumstances affording substantial corroboration of his testimony, Ave are not to say that Kenny’s story Avas improperly given credit by the justice, Avbose determination as to the facts ivas aided by his opportunity of observing the manner in Avhich the testimony Avas given, and the appearance of the Avitnesses upon the stand. It Avas quite competent to the parties to this lease (Ross and the defendant) to discharge it by parol. Tallman Ar. Earle (Com. Pl.) 13 N. Y. Supp. 805 . And the fact of that discharge appears from Kenny’s testimony as to the transaction betAveen Boss and himself Avhen acting, in this regard, in behalf of Mrs. Engel, the defendant. Consideration for the landlord's agreement to discharge the tenant is to be found in the fact of her ■surrender and delivery of possession, and no question was raised upon the trial as to the competency of the defendant’s proof in support of that agreement. It Avould appear, however, that the statute of frauds does not apply to the transaction, since the term surrendered Avas of no more than a year’s duration, and therefore neither the agreement of surrender, nor the agent’s authority, Avere required to be evidenced by Avriting. 2 Rev. St. (Banks Bros.’ 9th ed.) p. 1884, § 6. The question litigated was entirely one of fact,—Avhether or not there had been an executed oral agreement; to discharge the lease (Tallman v. Earle, supra),—and we should not disturb the conclusion reached in the affirmative.

Judgment affirmed, with costs.

All concur.