City of New York v. Warner , 119 Misc. 687 ( 1922 )

Per Curiam.

The plaintiff city sues for rent reserved under a permit or lease dated October 11, 1920, for the period from that date to April 30, 1921. The defense was that “ It was expressly agreed by and between the plaintiff and the defendant that the plaintiff would dispossess or otherwise remove a certain tenant in possession of a part of said premises at the time of the execution of the said permit, and that said permit was to take effect and that the defendant was to become liable thereunder for rent when the aforesaid tenant had been dispossessed or otherwise removed from the premises by the plaintiff and the defendant put into full and complete possession of the entire premises and not before.”

It seems that the other occupant of the premises was removed about February 1,1921, and the verdict limits the rent awarded the plaintiff to the period beginning on that date. The lease was in writing. Defendant was permitted to give evidence as to an oral understanding with the plaintiff’s representative to the effect, as he phrases it, in one instance, that the rent was not to begin until the other occupant was removed, and in another that the lease was not to become effective until that event.

I shall not' discuss the weight of evidence as affected by the manner in which this testimony was given because I think that as matter of law it was incompetent and should have been excluded. While it was undoubtedly in the minds of counsel that parol testimony is competent to prove the condition upon which alone a written agreement shall become effective (See Jamestown Business College Assn. v. Allen, 172 N. Y. 291), the rule is manifestly inapplicable to the kind of agreement involved in the instant case. Here was an express contract that an agreement should become operative on a certain date and that rent should be paid from that time. If the meaning of the testimony was merely that the rent although accruing from the date fixed in the lease should not become payable until the happening of the event, it would be quite useless as a defense since the condition has occurred, and all the rent is, therefore, due. If, on the other hand, the testimony is to be interpreted, as contended by tenant, respondent, to the effect that the lease should not become effective until the other occupant was removed, the oral understanding would be in direct contradiction of the express terms of the instrument which provide that it shall be effective and rent due thereunder from and after a fixed date.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijtjr and Delehanty, JJ.

Judgment reversed.