McMaster v. Kohner — 44 N.Y. Super. Ct. 253

Majority

p. 253

DAVID McMASTER, Plaintiff and Respondent, v. MARCUS KOHNER, Defendant and Appellant.

Headnote

I. Agreement.

1. Modification, when consideration fob necessary.

(a) Bent, reduction of.

1. An agreement to reduce the rent reserved by a lease for the balance of the demised term thereafter to ensue requires a new consideration.

Before Speir and Freedman, JJ.

Decided November 4, 1878.

The facts sufficiently appear in the opinion.

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J. H. Southworth, attorney, and H. 0. Southworth, of counsel, for appellant.

The decision at the trial was erroneous. 1. A contract in writing may be varied by parol, the original contract furnishing sufficient consideration for the modification ( 38 N. Y. 225 , 227, Hunt, Ch. J.; 20 Barb. 42 ). Original contract in writing, modified by parol afterward. “Held also it was competent for the parties by a subsequent parol contract, to extend the time for the performance of the original agreement, and this without any new consideration.” The time for performance in this last case was enlarged by parol, and held well ( 20 Barb. 64 . See 5 Cow. 506 ; 8 Johns. 528 ; 1 Barb. 327 ; 15 Johns. 200 ; 7 Cow. 48 , 50 ; 12 Barb. 366 ). The case in 38 N. Y. would seem to be decisive of the one at bar in defendant’s favor.

W. McDermott, attorney, and of counsel for respondent.

A promise by parol made subsequently to the execution of the lease, needs a new and sufficient consideration to uphold it (Walker v. Gilbert, 2 Robt. 214. See also Van Allen v. Jones, 10 Bosw. 369 ; Coe v. Harly, Daily Register, March 4, 1878, Ct. of App.).

The action was brought to recover a balance of $764.88 due to the plaintiff for rent on a lease dated October 19, 1874. By the terms of the lease the defendant was to pay the sum of $1,550 per annum, payable monthly in advance, for two years and six months from November 1, 1874.

The defendant gave evidence tending to show that when the lease was running, and after the January term of 1876 had commenced, the plaintiff agreed to accept $100 per month thereafter, and that defendant paid such sum until June, 1876, when plaintiff agreed to accept for the balance of said term $80 per month rent until the end of the term, and that defendant

p. 255

directed a man who boarded with him to pay plaintiff that amount, which he did pay until the termination of the lease. The court ordered a verdict for the plaintiff—for the reason that the agreement claimed by the defendant was without consideration and void. This is too plain for discussion.

The judgment must be affirmed with costs.

Freedman, J., concurred.

Cases cited

Blanchard v. Trim 38 N. Y. 225 N.Y. at 227 p. 254
Clark v. Dales 20 Barb. 42 N.Y. Sup. Ct. 1855-05-07 p. 254
Franchot v. Leach 5 Cow. 506 N.Y. Sup. Ct. p. 254
Hasbrouck v. Tappen 15 Johns. 200 N.Y. Sup. Ct. p. 254
Allen v. Crofoot 7 Cow. 48 N.Y. Sup. Ct. at 50 p. 254
Esmond v. Van Benschoten 12 Barb. 366 N.Y. Sup. Ct. 1852-01-05 p. 254
Van Allen v. Jones 10 Bosw. 369 N.Y. Super. Ct. 1863-03-28 p. 254