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(182 N.Y.S.)

which was seller and which was buyer. Parol evidence was admitted that one was a flour dealer and the other a baker. The principle has been applied to determine the location and identity of the property which is the subject of the sale. Miller v. Tuck, 95 App. Div. 134, 88 N. Y. Supp. 495; Morrison v. Brenmohl, 137 App. Div. 4, 122 N. Y. Supp. 81. In this case it was shown by stipulation that defendant was the vendor. The ambiguity of the memorandum was therefore completely removed.

[4, 5] The appellant also claims that the memorandum is insufficient, because it omits that part of the agreement which fixes a date for the closing of the title and the payment of the consideration. It is unquestionably the law of this state that, in order to satisfy the requirements of the statute of frauds, the note or memorandum must include all the terms of the contract which the parties made. Brauer v. Ocean Steamship Navigation Co., 178 N. Y. 339, 70 N. E. 863; Drake v. Seaman, 97 N. Y. 230; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434. The contract is one thing, and the written evidence required by the statute of frauds quite another. The statute is satisfied by a note or memorandum of the contract which was actually made by the parties. If any of the terms of such contract are omitted from the memorandum, the statute is not satisfied and the contract is void. The rule, therefore, has been asserted that parol evidence of the terms of an oral contract may be admitted to show that the memorandum lacks one of the terms agreed on. Pitts v. Beckett, 13 M. & W. 743. So it is said in Benjamin on Sales, $ 209:

“On the same principle, parol evidence is admissible for the purpose of showing that the written paper is not a note or memorandum of the antecedent parol agreement, but only of part of it, and the decisions are quite in accordance with this view."

It seems to me that this doctrine opens the door to frauds of the same character that the statute was enacted to prevent. I see no reason why the rule, which prohibits parol evidence to vary a written contract, should not be applied to the note or memorandum in writing. If it is complete on its face, the doctrine set forth in the foregoing extract from Benjamin on Sales would permit one of the parties to escape from his contract by testifying that it contained a provision not present in the memorandum. I cannot find that the rule has been adopted in this state. In Davis v. Shields, 26 Wend. 341, this question was not considered. The case proceeded on the assumption that a clause in the antecedent parol contract was omitted from the memorandum and the memorandum was therefore insufficient. It does not appear that this was established by parol evidence. In Wright v. Weeks, 25 N. Y. 153, it appeared on the face of the memorandum that specified terms were omitted.

However, the decision of this question is not relevant to the case at bar. The fourth paragraph of the complaint is as follows:

"That the balance of the purchase price, to wit, the sum of $1,200, was to be paid on the closing of the title, and that said title was set for closing, at the option of the plaintiff herein, at any time before the 1st day of June, 1919.”

The decision of the court contains a finding in the same words. If this was an allegation and finding that one of the terms of the antecedent contract fixed the time for closing, and the payment of the balance of the purchase price, then the contract is void, because the memorandum did not contain all its terms. As the cases above cited decide, all the terms of the contract must be found in the note or memorandum. But I am not prepared to say that such is necessarily the meaning of the allegation and finding.

[6] The memorandum did not fix the time for closing, and in the absence of such provision the law provides that the contract shall be closed within a reasonable time. It will be noted that neither the quoted paragraph of the complaint nor the finding states that this was one of the terms of the contract, although we find that explicit allegation in the second and third paragraphs. Neither does the stipulation on which the finding was founded indicate that this was one of the terms of the contract. There was no independent proof of an antecedent contract; the contract was proved by the writing only; a parol stipulation could not vary it. Under the case as presented, we must assume that the paper writing was the contract. The contemporaneous stipulation was not competent to modify the contract, which remained as the law made it--a contract to be performed within a reasonable time; and the tender of the purchase price was made in a reasonable time. Long v. Millar, 4 C. P. Div. 450; Morrison v. Brenmohl, supra.

The judgment should be affirmed, with costs. All concur.

FORSHAW v. HATHAWAY. (Supreme Court, Appellate Term, Second Department. May Term, 1920.) 1. Landlord and tenant ca 190 (2) - Partial eviction relieves tenant from

liability for rent.

Where there has been a partial eviction by the landlord, the tenant can

not be required to pay rent. 2. Landlord and tenant Eww190 (2)—Tenant cannot hold part of premises and

refuse to pay rent because entire premises not delivered,

Where a landlord demised two buildings, but failed to put the tenant in possession of one, the tenant, who entered under the lease, cannot hold possession of the single building and at the same time refuse to pay rent, on the theory of partial eviction, for it would seem that no one could be evicted from something which he had never possessed, and furthermore the tenant has other remedies, and might have elected either to refuse to take possession under the lease and sue for damages, or might have

sought an apportionment of rent. 3. Landlord and tenant w129 (1)-Rights of tenant on failure of landlord to

deliver part of premises stated.

Where a landlord fails to deliver possession of part of demised premises, the tenant may elect to refuse to accept possession of any part, and recover damages, or he may accept possession of part, and bring action to have the rent apportioned, or for damages, or defend an action for rent or to dispossess him, on the ground that he is entitled to an apportionment of rent or damages. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.8.) 4. Landlord and tenant Ew285 (3)—Damages or apportionment of rent because

part of premises not delivered must be pleaded.

Where, on the failure of the landlord to put him in possession of all the demised premises, the tenant entered, but refused to pay the rent reserved, and the landlord brought proceedings to dispossess, the tenant is not entitled to damages or an apportionment of the right, unless by his pleadings he seeks the same.

Appeal from Municipal Court, Borough of Brooklyn, Seventh District.

Proceedings by William J. Forshaw, landlord, against Henry T. Hathaway, tenant. From a final order awarding the landlord possession, the tenant appeals. Affirmed.

Argued May term, 1920, before CROPSEY, CLARK, and KELBY, JJ.

Joseph Fried, of New York City, for appellant.
James A. Sheehan, of Brooklyn, for respondent.

CROPSEY, J. The respondent made a lease of two buildings. This, with his consent, was assigned to the appellant before the term began. When the appellant became entitled to possession, he could obtain but one of the buildings; the other being occupied by another tenant claiming the right to remain for an additional year. The respondent did not succeed in removing the other tenant, and the appellant took possession of the one building that was available. He had paid one month's rent in advance and before the term was to begin. After he was in possession of the one building, he refused to pay any additional rent. This proceeding was then started to dispossess him for failing to pay four months' rent at the rate specified in his lease. The appellant has never obtained possession of the other building.

In his answer appellant does not plead any counterclaim for damages, nor does he seek or claim to be entitled to an apportionment of the rent. Upon the trial it was conceded that the appellant had offered to pay the rent for the one building which he occupied, and that the respondent refused to accept it. The lease did not fix separate amounts for each building. It merely fixed the rent for two buildings at a stated figure. The question is merely one of law, and there are authorities that support the conflicting contentions of the appellant and respondent.

[1-3] The appellant claims that he has been evicted from a portion of the premises, and hence is not obliged to pay any rent. That this is the rule where there has been an actual partial eviction by the act of the landlord is not disputed. Fifth Avenue Building Co. v. Kernochan, 221 N. Y. 370, 373, 117 N. E. 579. The question is whether the admitted facts constitute an eviction, and, if they do not, whether the same rule applies as though there had been such an eviction. It would seem to be plain that no one could be evicted from something of which he had never been possessed. Merely refusing to put one in possession of premises, which under agreement he was entitled to,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

is not an eviction. Vanderpool v. Smith, 4 Abb. Dec. 461, 464; Etheridge v. Osborn, 12 Wend. 529, 532. See, also, Diamond v. Bollt, 174 N. Y. Supp. 642.

So the decision here depends upon whether the same rule is applicable where the landlord has failed to put the tenant in possession of the entire leased premises, as where there has been an actual eviction by the landlord from a portion of them. That the same rule does not apply, and that where the landlord merely fails to put the tenant in possession of a portion of the premises, and the tenant accepts possession of the remainder, he may be sued for the entire rent or dispossessed for its nonpayment, see O'Brien v. Smith, 59 Hun, 624, 13 N. Y. Supp. 408, affirmed 129 N. Y. 620, 29 N. E. 1029; Smith v. Barber, 96 App. Div. 236, 89 N. Y. Supp. 317. That under such circumstances the landlord may neither recover his rent nor dispossess his tenant, see Lawrence v. French, 25 Wend. 443, affirmed 7 Hill, 519, approved, though only in dictum, in Christopher v. Austin, 11 N. Y. 216, 218; Sullivan v. Schmitt, 93 App. Div. 469, 87 N. Y. Supp. 714.

In this conflict in the cases, the decision here must be determined by principle and upon sound reasons. The reason underlying the decisions holding that a landlord, who has evicted a tenant from a portion of the premises, may not recover the rent or the possession of the property for its nonpayment, is that the landlord is not permitted to apportion his own wrong. Having by his wrongful act taken from the possession of the tenant a portion of the demised premises, he cannot ask the tenant to live up to the terms of the letting, nor can he seek an apportionment of the rent. But this reason has no force or application, where the tenant has never been in possession, and the landlord has not taken anything from his possession.

If a landlord fails to give to his tenant possession of all that the letting calls for, the tenant is not obliged to accept any portion of the premises. He may refuse to accept only a part, and, if he does so, the landlord could not compel him to pay any rent, and the tenant would have an action against him for his damages. If, however, a tenant, knowing he cannot get possession of all the property, accepts possession of a portion of it, he is not put in that position through any wrongful act of the landlord. The tenant has the option of refusing to take a portion of the premises, or of taking the portion of which he can have possession. Electing to do the latter, he takes it only under his lease, and so obligates himself to comply with its terms. This makes him liable for the rent called for by the lease, and if he fails to pay that he may be sued for it or dispossessed.

Under this holding the tenant is not prejudiced. He has his election, as has been stated; and if he chooses to accept possession of a portion of the premises he has the right to bring an action to have the rent apportioned (Duhain v. Mermod Jaccard & King J. Co., 211 N. Y. 364, 105 N. E. 657, Ann. Cas. 1915C, 401), or to recover his damages arising from the landlord's failure to give him possession of the whole property as agreed, and if he is sued for nonpayment of the rent or a proceeding to remove him from the property is based thereon he may defend on the ground that he is entitled to an ap(182 N.Y.S.) portionment or to damages for the landlord's breach of the agreement. - In this way the tenant's rights are fully protected.

[4) On the other hand, if the contention of the appellant is sustained, the tenant may remain in a portion of the premises without paying any rent, and the landlord can neither recover the rent nor possession of the property. Here the tenant did not seek either an apportionment of his rent or damages for breach of the landlord's agreement. This not being pleaded, he had no defense to the proceeding. Cushman & Co. v. Ballow & Co., 174 App. Div. 236, 239, 160 N. Y. Supp. 1060. We think the failure of the landlord to give possession to his tenant of the entire property, where the tenant accepts possession of a portion of it, is not an eviction, nor the equivalent thereof, and that the cases holding that under such circumstances the tenant is obligated to pay the rent agreed upon state the correct rule. Such a disposition will not prevent the appellant from asserting his claim for damages arising from the landlord's breach of his agreement.

Order affirmed, with costsy
CLARK and KELBY, JJ., concur.

(192 App. Div. 114)

LETZTER v. OCEAN ELECTRIC RY, CO. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) 1. Railroads Fm 350 (6)—

Negligence in operating electric car held for jury. In an action for injuries to an automobile driver, struck by an electric car at a crossing after he had stopped on the track to avoid collision with a car approaching on another track, whether the motorman, knowing that the crossing gates were not working, was negligent, held a question

for the jury. 2. Railroads 350 (13) -Contributory negligence of automobile driver held

for jury.

In an action for injury to an automobile driver, struck by an electric car at a crossing, where there was evidence that the flagman gave no signal of the approach of the car, whether plaintiff, in entering on the tracks without gates being lowered and without signal by the flagman,

was guilty of contributory negligence held a question for the jury. 3. Railroads Ow301–Rights of electric cars using steam railroad superior

to automobile.

Where electric cars were operated on the tracks of a steam railroad, the rights of such cars at a crossing in a suburb were superior to the rights

of an automobile. 4. Appeal and error Cw1067—Refusal to give requested instruction held prej.

udicial in close case.

In action for injuries to automobile driver in collision with an interur. ban street car at suburb crossing, where the case was a close one on th issues of negligence and contributory negligence, refusal to instruct as to the railroad's superior rights on track at crossing held prejudicial

error.

Appeal from Trial Term, Queens County:

Action by Irving Letzter, an infant, by Yetta Letzter, his guardian ad litem, against the Ocean Electric Railway Company. From a

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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