Hope v. . Balen

58 N.Y. 380, 1874 N.Y. LEXIS 513

• Court: New York Court of Appeals
• Decided: September 29, 1874
• Status: Published

Opinion

Grover, J.

Where a verbal contract is entire, and a part only in part performance is reduced to writing, paroi proof of the entire contract is competent. (1 Greenl. Ev., § 284 a; Hutchins v. Hebbard, 34 N. Y., 24.) By the verbal contract of the parties, as found by the jury, the defendants were to surrender to the plaintiff the residue of the term in the premises leased to them by the plaintiff, and surrender to him the possession thereof on the 1st day of May, 1869, in consideration of which the plaintiff was to discharge them from the payment of the quarter’s rent coming due upon the lease that day. On the 30th of March, 1869, the defendants executed and delivered to the plaintiff, in pursuance of the contract, the following instrument written upon the lease: “ It is hereby agreed between the subscribers that the period of the lease (within mentioned) which is unexpired on the 1st day of May, 1869, is hereby canceled.” The defendants on or before the first of May, yielded up the possession of the premises to the plaintiff or his lessee. The surrender of the unexpired term of the lease by the defendants to the plaintiff, was an act done in part performance of the oral contract, and did not render proof of the residue of the contract inadmissible. This proof was properly received.' Some other exceptions were taken by the plaintiff’s counsel upon the trial, but all were dependent upon the competency of this evidence. The ] udgment appealed from must be affirmed, with costs.

All concur.

Judgment affirmed.