Opinion
February 1, 1918.
Stephen Holden [ James H. Cavanaugh with him on the brief], for the appellant.
J.E. Quinn, for the respondent.
In this action by a landlord to recover rent under a written lease, the defendant pleaded inter alia that prior to and at the time of the making of the written agreement of lease the parties further covenanted and agreed that said lease should not take effect or be in force until the plaintiff should install an adequate heating apparatus in the dwelling house on said premises and make other repairs to the premises, particularly to the roof and to the plumbing system. The lease was silent on this matter. The jury returned a general verdict for the defendant.
The learned court refused under exception to charge the jury that if the repairs alleged to be made to the plumbing, to the roof, and installation of the new heating system, were to be made during the term of the lease, they must not consider the evidence as to the oral agreement. There was proof that made the request germane. I think that the exception was well taken. ( Greene v. Ker, 48 Misc. Rep. 609, citing Hall v. Beston, 16 id. 528; 26 App. Div. 105; affd., 165 N.Y. 632, on opinions below.)
The judgment and order of the City Court of Mount Vernon should be reversed and a new trial ordered, costs to abide the event.
THOMAS, PUTNAM, BLACKMAR and KELLY, JJ., concurred.
Judgment and order of the City Court of Mount Vernon reversed and new trial ordered, costs to abide the event.