Goerlitz v. Schwartz

Appellate Terms of the Supreme Court of New York

Goerlitz v. Schwartz

112 N.Y.S. 1119

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 24, 1908

StatusPublished

This text of 112 N.Y.S. 1119 (Goerlitz v. Schwartz) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goerlitz v. Schwartz, 112 N.Y.S. 1119 (N.Y. Ct. App. 1908).

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Opinion

PER CURIAM.

Two causes of action are pleaded: (1) That under a lease to them in 1904 of the ninth loft of 10 Waverly Place, the defendants stipulated to pay on the 1st day of August, 1904, the regular water tax amounting to $10, and made a like stipulation in a renewal of the lease, together amounting to $20; (2) that under a lease and a renewal thereof for the same premises for the years from February 1, 1906, to February 1, 1908, the defendants stipulated promptly to pay a pro rata share of all Croton water rent which might be assessed during the said term upon the building.

There was' little opposition to the prima facie proof of the first cause of action. As to the second, the defendants objected to the manner of computing their proportionate share, contending they were liable only for the water actually used by them, and that thereof there was no proof. But the language of the covenant indicates that the share of their loft was to be proportionate to those of all the lofts. They undertook their share, and it needs be computed by the means at hand, unless they put in, as they might under the regulations of the water department, a meter for themselves and procured a change of the lease. They knew the only means of arriving at their indebtedness, and accepted it.

Another and almost novel defense, and whereof the learned trial justice excluded all evidence, was an alleged contemporaneous oral agreement nullifying in part the written lease, and whereby, according to the defendants, the plaintiffs agreed not to enforce the covenants as to water rents if the defendants signed the lease and paid the rent. Of these alleged agreements the learned trial justice rightly excluded all testimony, because not within the rule that parol evidence is admissible to show a written paper, in form a complete contract, is not to become binding until the performance of some condition precedent resting in parol. Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127.

Judgment affirmed, with costs.

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PER CURIAM.

Two causes of action are pleaded: (1) That under a lease to them in 1904 of the ninth loft of 10 Waverly Place, the defendants stipulated to pay on the 1st day of August, 1904, the regular water tax amounting to $10, and made a like stipulation in a renewal of the lease, together amounting to $20; (2) that under a lease and a renewal thereof for the same premises for the years from February 1, 1906, to February 1, 1908, the defendants stipulated promptly to pay a pro rata share of all Croton water rent which might be assessed during the said term upon the building.

There was' little opposition to the prima facie proof of the first cause of action. As to the second, the defendants objected to the manner of computing their proportionate share, contending they were liable only for the water actually used by them, and that thereof there was no proof. But the language of the covenant indicates that the share of their loft was to be proportionate to those of all the lofts. They undertook their share, and it needs be computed by the means at hand, unless they put in, as they might under the regulations of the water department, a meter for themselves and procured a change of the lease. They knew the only means of arriving at their indebtedness, and accepted it.

Another and almost novel defense, and whereof the learned trial justice excluded all evidence, was an alleged contemporaneous oral agreement nullifying in part the written lease, and whereby, according to the defendants, the plaintiffs agreed not to enforce the covenants as to water rents if the defendants signed the lease and paid the rent. Of these alleged agreements the learned trial justice rightly excluded all testimony, because not within the rule that parol evidence is admissible to show a written paper, in form a complete contract, is not to become binding until the performance of some condition precedent resting in parol. Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127.

Judgment affirmed, with costs.

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112 N.Y.S. 1119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goerlitz-v-schwartz-nyappterm-1908.

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