Herschmann-Tucker Furniture Co. v. Barth

Appellate Terms of the Supreme Court of New York

Herschmann-Tucker Furniture Co. v. Barth

64 Misc. 77, 117 N.Y.S. 962

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1909

StatusPublished

This text of 64 Misc. 77 (Herschmann-Tucker Furniture Co. v. Barth) 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

Herschmann-Tucker Furniture Co. v. Barth, 64 Misc. 77, 117 N.Y.S. 962 (N.Y. Ct. App. 1909).

Pincite

Opinion

MacLean, J.

The plaintiff,’ in its amended complaint, declared that the defendants, in consideration of the plaintiff’s [78]*78surrendering and cancelling a lease of certain premises, would execute and deliver to the plaintiff a new lease of the same premises, and promised and agreed, in consideration therefor, that they would cause certain alterations and repairs to be made and paid for by them, irrespective of cost, and that pursuant to said agreement and at the request of the defendants the plaintiff caused said repairs to be made for the reasonable sum, etc. The defendant-appellant denies this, and contends that the provisions of the new lease, subsequently executed and exchanged by the parties, relative to alterations and repairs are controlling; “that a written contract merges all prior and contemporaneous negotiations and oral promises in reference to the same subject, and that, when the terms of a lease are in writing, the rights and duties of the joarties depend upon the terms or legal intendment of the lease itself, or, as otherwise expressed, that it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking are embraced in the writing ” (Wilson v. Deen, 74 N. Y. 531, 534), a rule of law that has been iterated and reiterated by our court of last resort (Thomas v. Scutt, 127 N. Y. 133; House v. Walch, 144 id. 418; Murdock v. Gould, 193 id. 369; Lossing v. Cushman, 195 id. 386; N. Y. L. J., June 8, 1909), and applicable herein were this action founded upon the contract of lease; but it does not apply where the original contract, though entire, was oral, but in part reduced to writing, and so “to be proved by the uncertain testimony of slippery memory.” Chapin v. Dobson, 78 N. Y. 74, 79. The evidence discloses that the defendant-appellant executed and delivered a lease of the premises to the plaintiff in the latter part of the year 1904, for a term of five years to commence May 1, 1905, and that the plaintiff paid the rent for the first month, and, according to the testimony adduced by the plaintiff, the defendant, discovering that he could not give possession, went to the plaintiff and said, “ I have given you a lease which I cannot deliver to you. I find that it is a year hence, but -not during the time as specified in that lease. Will you do something to relieve me? These people next door want $5,000 to get out. * * * I will give you the [79]*79benefit of whatever I can if you will release me. * * * I will draw up a new lease and I will make any alterations.” This was the contract between the parties and the entire contract, the promise by the plaintiff to surrender its rights under the lease of 1905 in consideration of the promise of the defendant to make a new lease to commence Hay 1, 1906, and to make the alterations the subject of the present claim, of which the making of the lease for 1906 was only a part. Therefore, it was not erroneous to admit the evidence, oral or written, or what occurred between the parties- antecedent to the execution and exchange of the new lease foi’ 1906; and, as the trial justice has found, so let the judgment stand.

IGildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.

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MacLean, J.

The plaintiff,’ in its amended complaint, declared that the defendants, in consideration of the plaintiff’s [78]*78surrendering and cancelling a lease of certain premises, would execute and deliver to the plaintiff a new lease of the same premises, and promised and agreed, in consideration therefor, that they would cause certain alterations and repairs to be made and paid for by them, irrespective of cost, and that pursuant to said agreement and at the request of the defendants the plaintiff caused said repairs to be made for the reasonable sum, etc. The defendant-appellant denies this, and contends that the provisions of the new lease, subsequently executed and exchanged by the parties, relative to alterations and repairs are controlling; “that a written contract merges all prior and contemporaneous negotiations and oral promises in reference to the same subject, and that, when the terms of a lease are in writing, the rights and duties of the joarties depend upon the terms or legal intendment of the lease itself, or, as otherwise expressed, that it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking are embraced in the writing ” (Wilson v. Deen, 74 N. Y. 531, 534), a rule of law that has been iterated and reiterated by our court of last resort (Thomas v. Scutt, 127 N. Y. 133; House v. Walch, 144 id. 418; Murdock v. Gould, 193 id. 369; Lossing v. Cushman, 195 id. 386; N. Y. L. J., June 8, 1909), and applicable herein were this action founded upon the contract of lease; but it does not apply where the original contract, though entire, was oral, but in part reduced to writing, and so “to be proved by the uncertain testimony of slippery memory.” Chapin v. Dobson, 78 N. Y. 74, 79. The evidence discloses that the defendant-appellant executed and delivered a lease of the premises to the plaintiff in the latter part of the year 1904, for a term of five years to commence May 1, 1905, and that the plaintiff paid the rent for the first month, and, according to the testimony adduced by the plaintiff, the defendant, discovering that he could not give possession, went to the plaintiff and said, “ I have given you a lease which I cannot deliver to you. I find that it is a year hence, but -not during the time as specified in that lease. Will you do something to relieve me? These people next door want $5,000 to get out. * * * I will give you the [79]*79benefit of whatever I can if you will release me. * * * I will draw up a new lease and I will make any alterations.” This was the contract between the parties and the entire contract, the promise by the plaintiff to surrender its rights under the lease of 1905 in consideration of the promise of the defendant to make a new lease to commence Hay 1, 1906, and to make the alterations the subject of the present claim, of which the making of the lease for 1906 was only a part. Therefore, it was not erroneous to admit the evidence, oral or written, or what occurred between the parties- antecedent to the execution and exchange of the new lease foi’ 1906; and, as the trial justice has found, so let the judgment stand.

IGildersleeve and Seabury, JJ., concur.

Judgment affirmed, with costs.

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64 Misc. 77, 117 N.Y.S. 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herschmann-tucker-furniture-co-v-barth-nyappterm-1909.

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