
    Porter Improvement Corporation, Respondent, v. Aaron Schur, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 29, 1933.
    
      Nathan F. Slutsky [Abraham Brinn of counsel], for the appellant.
    
      Monfried & Warner [Charles Warner of counsel], for the respondent.
   Per Curiam.

In this action to recover rent and security agreed to be deposited under a written lease, plaintiff, contrary to the allegations of the complaint as limited by the bill of particulars, was permitted, against defendant’s objection, to prove a cause of action necessarily based upon oral testimony establishing, as decided by ■the court below, that defendant had orally agreed to take a lease for two years of the premises referred to in the complaint. Defendant’s exception to the admission of the evidence presents prejudicial error, though the Statute of Frauds was not invoked on the trial.

Assuming the paper pleaded in the complaint and set out in the bill of particulars is an agreement for a lease, for a breach of which agreement defendant would be liable, in the absence of an allegation in the complaint of performance of conditions precedent or concurrent by the plaintiff, no cause of action is stated, and judgment on the pleadings should have been awarded defendant.

Judgment and order reversed, with thirty dollars costs, and motion for judgment on the pleadings granted, with leave to plaintiff to serve an amended complaint within five days after service of order entered hereon upon payment of costs.

All concur; present, Lydon, Levy and Callahan, JJ.  